Arrest and Conviction Records in Employment Decisions

April 29, 2012, by Kristan Peters-Hamlin

On April 25, 2012, the Equal Employment Opportunity Commission issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

In summary, arrests cannot be used in employment decisions because of the disparate impact demonstrated in statistics linking race and national origin to higher levels of arrest, and because no culpability is proven until a conviction occcurs. Therefore, the probative value of an arrest is doubtful, and may also be based solely on racial and ethnic bias. Notably, the Guidance ignores entirely gender differences in arrest and conviction rates, which are far starker than the differences based on race and national origin.

The heart of the Guidance-- that which is most useful to employers in making decisions about what criminal convictions can be considered, under what circumstances, and for what jobs -- is contained in sections 4, 5 and 6 of the Guidance:

"4. Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity
To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

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 screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); 111 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 Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity. See Section V.B.9, infra (examples of relevant considerations in individualized assessments).

Depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.

5. Validation
The Uniform Guidelines describe three different approaches to validating employment screens. However, they recognize that "[t]here are circumstances in which a user cannot or need not utilize" formal validation techniques and that in such circumstances an employer "should utilize selection procedures which are as job related as possible and which will minimize or eliminate adverse impact as set forth [in the following subsections]."Although there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications,and thereby provide a framework for validating some employment exclusions, such studies are rare at the time of this drafting.

6. Detailed Discussion of the Green Factors and Criminal Conduct Screens
Absent a validation study that meets the Uniform Guidelines' standards, the Green factors provide the starting point for analyzing how specific criminal conduct may be linked to particular positions. The three Green factors are:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

a. The Nature and Gravity of the Offense or Conduct
Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation.115 With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.

b. The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence
Employer policies typically specify the duration of a criminal conduct exclusion. While the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did acknowledge that permanent exclusions from all employment based on any and all offenses were not consistent with the business necessity standard. Subsequently, in El, the court noted that the plaintiff might have survived summary judgment if he had presented evidence that "there is a time at which a former criminal is no longer any more likely to recidivate than the average person . . . ." Thus, the court recognized that the amount of time that had passed since the plaintiff's criminal conduct occurred was probative of the risk he posed in the position in question.

Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. Relevant and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.

c. The Nature of the Job Held or Sought
Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job's duties (e.g., data entry, lifting boxes), identification of the job's essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job's duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used."