The first case of predominance brought by the EEOC to challenge the use of criminal (and credit) was EEOC v. Freeman, Case No.: RWT09cv2573 (U.S.D. Ct. MD.). That case has reached its conclusion with the United States District Court dismissing the claims against Freeman.
The EEOC claimed that the use of criminal records and credit created a disparate impact upon certain minority groups. In summary, the EEOC failed to present any evidence of disparate impact. The EEOC's report was filled with errors. Which ultimately resulted in it being rejected by the court. This left the EEOC attempting to support its claim by using general national statistics. However, to prove discrimination via disparate impact; a plaintiff must analyze the applicant pool for the defendant. The EEOC failed to do this and thus lost in court. This may be a case where passion for a cause ran ahead of lawyering, i.e., what can be proven?
The district court noted that the law requires a disparate impact claim to identify, with particularity, the process, policy or rule that results in the disparate treatment. The court noted, with apparent approval, the multi-step process Freeman used to consider whether
convictions and/or bad credit would disqualify an applicant.
EEOC Publishes New Guidance on Consideration of Arrest and Convictions Records in Employment Decisions
The U.S. Equal Employment Opportunity Commission (EEOC) recently published new guidance with respect to the Enforcement Guidance on Consideration of Arrest and conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.
The EEOC is responsible for the enforcement of Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex, or national origin. The Guidance was issued as part of the Commission's efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments.
- An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
- The Guidance builds on longstanding court decisions and existing guidance documents that the U.S. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago.
- The Guidance focuses on employment discrimination based on race and national origin. The Introduction provides information about criminal records, employer practices, and Title VII.
- The Guidance discusses the differences between arrest and conviction records.
- The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
- In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
- The Guidance discusses disparate treatment and disparate impact analysis under Title VII.
- A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
- An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
- National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
- Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:
- The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
- The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).
- Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
- State and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-7.
- The Guidance concludes with best practices for employers.
- Best practices, according to new guidance
- Eliminate policies or practices that exclude people from employment based on any criminal record;
- Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination;
- Develop a narrowly tailored written policy and procedures for screening for criminal records;
- Identify essential job requirements and the actual circumstances under which the jobs are performed;
- Determine the specific offenses that may demonstrate unfitness for performing such jobs;
- Identify the criminal offenses based on all available evidence;
- Determine the duration of exclusions for criminal conduct based on all available evidence;
- Record the justification for the policy and procedures;
- Note and keep a record of consultations and research considered in crafting the policy and procedures;
- Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII;
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and
- Keep information about the criminal records of applicants and employees confidential (only use it for the purposes for which it was intended).