EEOC: Use care when rejecting job applicants with criminal recordsThe use of job applicants’ criminal record information may violate Title VII of the Civil Rights Act of 1964 if it is done in a discriminatory way, the U.S. Equal Employment Opportunity Commission reminded in an informal discussion letter released in April.
By: By Rebecca Bentz/J. J. Keller & Associates, Superior Telegram
The use of job applicants’ criminal record information may violate Title VII of the Civil Rights Act of 1964 if it is done in a discriminatory way, the U.S. Equal Employment Opportunity Commission reminded in an informal discussion letter released in April.
The letter responds to the U.S. Environmental Protection Agency’s request for review of the agency’s background check standards for contractor employees. The agency excludes individuals who have had a weapons offense in the last five years or a felony conviction in the last three years from work on a contract at any EPA “response site.” The EPA also excludes individuals with a weapons offense in the last 10 years, a felony conviction in the last seven years, or a misdemeanor conviction in the last five years from work on any EPA-designated “sensitive site.”
The EEOC urged the EPA to make changes to its hiring standards in this area.
A pre-employment inquiry concerning criminal records does not in itself violate Title VII because Title VII does not regulate inquiries by employers. However, the use of criminal record information by a Title VII-covered employer does violate the law if it is done in a discriminatory way. This might occur in two circumstances:
The employer uses the information differently depending on the applicant’s race, national origin or other protected status. This would be considered disparate treatment.
The employer’s use of criminal history information results in disparate impact. According to the EEOC, because disproportionate numbers of African Americans and Hispanics are convicted of crimes, the use of conviction records to make employment decisions is likely to have a disparate impact on these groups. When disparate impact occurs, an employer may use criminal history information to make employment decisions only when it is job related for the position in question and consistent with business necessity.
Disparate impact is what the EEOC was concerned about in the EPA’s background check standards. For exclusions based on convictions, the criminal conduct must be recent enough and sufficiently job related to be predictive of performance in the position the applicant is seeking. EEOC guidance identifies three factors to consider in making this assessment:
The nature and gravity of the offense or offenses,
The time that has passed since the conviction and/or completion of the sentence, and
The nature of the job held or sought.
While the EPA considers the time elapsed since convictions, the agency does not target its exclusions within those time periods to specific crimes that relate to the contract work, according to the EEOC. The EEOC questioned whether it actually is job related for the position in question and consistent with business necessity to exclude all people with misdemeanor convictions in the last five years from working for all EPA contractors at EPA-designated “sensitive sites.”
The EEOC recommended the EPA narrow its exclusions to focus on particular misdemeanor and felony convictions that relate to the work and the site of a contract. The EEOC also urged the agency to implement a waiver or appeals process so that individuals or contractors can request an individualized assessment. The EPA apparently already has a waiver process for its drug screening exclusions.
The EEOC’s letter to the EPA serves to remind all employers that making employment decisions based on an applicant or employee’s criminal history necessitates an individualized analysis. If an employer does decide to pass on an applicant because of something discovered in his or her criminal record, the employer should document its reasoning for doing so and such reasoning should be made in consideration of the EEOC’s three factors outlined in this article.
Rebecca Bentz is a human resources subject matter expert and associate editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. For more information, visit www.