The EEOC is focusing on the use of arrest and conviction records in employment decisions. According to the EEOC’s Enforcement Guidance, an employer’s use of an individual’s criminal history in making employment decisions may violate Title VII.
Distinctions are made between arrest records and conviction records. An arrest, in and of itself, does not establish that criminal conduct has occurred and is rarely, if ever, the justification for making an employment decision. Baldwin Haspel Burke & Mayer discourages even inquiring about a job applicant’s arrest record and any questions on application forms should be removed.
A conviction, however, may be sufficient evidence of conduct upon which an employment decision may be based, but the analysis does not end there. The EEOC’s concerns are that the use of such records may produce a “disparate impact” on a protected class. If such impact exists, it may be a violation of Title VII unless an employer can establish that an exclusion from employment based on past criminal conduct is job related and consistent with business necessity.
For blanket exclusions for specific positions, this may be satisfied by the EEOC’s Uniform Guidelines on Employee Selection Procedures or meeting the so-called “Green” factors: (1) the nature and gravity of the offense; (2) the time that has passed and (3) the nature of the job. There are other factors to be considered for specific individuals and positions.
Notably, complying with a state law requiring an employer to perform criminal background checks is not an automatic defense.
The EEOC has already filed actions against Dollar General and BMW as to the use of criminal background checks in employment decisions. This is a developing area in employment law and these cases will be closely watched.