EEOC Enforcement Guidance on Criminal Background Checks. By: Jonathan G. Rector, Associate Attorney Crowe & Dunlevy

Transcription

1 EEOC Enforcement Guidance on Criminal Background Checks By: Jonathan G. Rector, Associate Attorney Crowe & Dunlevy

2 Title VII Title VII (Civil Rights Act of 1964) prohibits employment discrimination based on the five protected classes: Race Color Religion Sex National Origin

3 Title VII Disparate Treatment v. Disparate Impact

4 Title VII Disparate Treatment Treating applicants or employees differently because they belong to a protected class. Violation of Title VII to single out and treat an individual less favorably than others similarly situated because they belong to protected class.

5 Title VII Examples of disparate treatment Suspending worker A for speeding through a parking lot while giving no punishment to worker B for the same infraction Firing worker A for a drug policy violation while referring employee B to an EAP Firing worker A after one warning, while allowing worker B multiple warning before termination

6 Title VII Disparate Impact A facially neutral employment practice that does not appear to be discriminatory, but is nonetheless discriminatory in its application or effect. What does that mean?

7 Title VII Disparate Impact Examples Employer requires all applicants to have a high school diploma Not necessarily discriminatory Is a high school diploma manifestly related to the position? Does its application have an adverse impact on a protected class? Employer requires all applicants to be able to lift 50 lbs Not necessarily discriminatory Is lifting 50 lbs manifestly related to the position? Does its application have an adverse impact on a protected class?

8 Question: Why has the EEOC issued new guidance on criminal background checks for employers and what does it have to do with discrimination? Are ex-convicts now a protected class?

9 Statistics In 1991, only 1.8% of the adult population had served time in prison In 2001, 2.7% (1 in 37 adults) In 2007, 3.2% (1 in 31 adults) were either incarcerated or on parole/probation The Department of Justice s Bureau of Justice Statistics predict that approximately 6.6% of all persons born in 2001 will serve time in state or federal prison during their lifetime

10

11 Disparate impact on race? African American & Hispanic men are arrested at a rate 2 to 3 times their proportion to the general population. 1 in 17 white men are expected to serve time in prison during their lifetime 1 in 6 Hispanic men 1 in 3 African American men

12 Statistics On any given day, about 2.3 million people are incarcerated Each year, 700,000 people are released from prison, and 13 million area admitted to and released from local jails.

13 New EEOC Guidance appears to be consistent with Obama Administration s efforts to reintegrate ex-offenders Reintegration a priority

14 Disparate Treatment v. Disparate Impact Disparate Treatment: Studies have shown that employers may treat whites with a criminal record more favorably than similarly situated African Americans with a similar criminal record Disparate Impact: Categorically excluding applicants with convictions or arrests

15 Increased EEOC Enforcement Strategic Plan for Fiscal Years Noteworthy Settlements

16 Pepsi has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination. The EEOC investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.

17 The New Guidance What s the problem with Criminal History Records Inaccurate Incomplete

18 The New Guidance Example: Walter, who is white, and Bob, who is black, both have recently graduated from college. Walter graduated from OSU and Bob graduated from OU. Both also were convicted of possessing marijuana in high school. Both apply for a job with ACME, who performs a criminal records search and discovers both convictions. ACME does a follow-up interview with Walter, and recommends him for the job. Bob does not get a followup interview because ACME does not want to employ those drug dealer types.

19 Disparate treatment or disparate impact?

20 The New Guidance Example: Walter, who is white, and Bob, who is black, both have high school diplomas and three years experience working construction. Both apply for a roofing job with ACME Roofing. ACME conducts a background check on all applicants, and has a policy that they will not hire anyone with a felony conviction. Bob has a felony conviction for drug possession and does not get the job.

21 Disparate treatment or disparate impact?

22 The New Guidance A blanket ban on hiring an individual based solely on his/her arrest record violates Title VII. Why? An arrest does NOT establish that criminal conduct occurred.

23 The New Guidance A blanket ban on hiring an individuals who have criminal convictions (felony or misdemeanor) of any kind would also likely violate Title VII.

24 The New Guidance The individualized assessment The criminal background check policy must be job-related and consistent with business necessity

25 The New Guidance Individualized Assessment Green v. Missouri Pacific Railroad Factors

26 The nature and gravity of the offense or conduct

27 The time that has passed since the offense or conduct or completion of the sentence

28 The nature of the job held or sought

29 Individualized Assessment Example: ACME Home Health operates a home health and hospice business where health aides are often inside a patient s home. ACME has a policy that prohibits the hiring of health aides who have any kind of conviction on their record. Does this violate Title VII?

30 Individualized Assessment Example: Same set-up, but ACME s policy now prohibits the hiring of any home health aide with a conviction for theft or a sex crime within the last 5 years.

31 Individualized Assessment ACME Home Health also has a position open in accounting. Their policy prohibits the hiring of any individual to work in accounting who has been convicted embezzlement. Violation of Title VII?

32 Rock and a Hard Place Employer Interests Maintaining a safe work environment Reduce negligent retention liability Reduce theft/embezzlement/criminal activity Comply with laws requiring background checks for certain positions Assess trustworthiness

33 Applicant Interests Opportunity to demonstrate ability to perform job irrespective of criminal past Privacy interest in personal information Accuracy of background information obtained

34 Best Practices Eliminate policies and practices that exclude individuals from employment based on the mere existence of a criminal record

35 Best Practices Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct Consider the Green v. Missouri Pacific Railroad Factors

36 Best Practices Require additional information from applicants if you have questions

37 Best Practices Train your managers and decision makers on how to implement hiring policies and procedures consistent with the EEOC guidance

38 Best Practices Limit inquiries regarding an individual s criminal background to situations in which such information is job-related for the position in question and consistent with business necessity as defined by the EEOC

39 Best Practices Document Everything

40 The End Jonathan Rector, Associate Attorney Crowe & Dunlevy