According to the Guidance, given the procedural safeguards in the criminal justice system, “a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct.”The caveats are that there may be evidence of an error in the record, an outdated record, or some other reason for not relying on the fact of the conviction; a database could, for example, continue to report a conviction that was later expunged or one for a felony that was later downgraded to a misdemeanor.
In deciding whether a policy has a disparate impact, the EEOC will examine the text, associated documentation, and information about how the policy was implemented. It will consider which offenses were reported to the employer, e.g., all felonies, all drug offenses; whether convictions (including sealed or expunged), arrests, charges, or other criminal incidents were reported; how far back in time the reports reached; and the jobs for which background screening was conducted. Whether the employer has a reputation for excluding people with criminal records will be examined, and training documents used by the employer will be relevant in this inquiry. Finally, although the EEOC takes the position that national data regarding the disparate impact of criminal record exclusions affords a basis for investigating a disparate impact charge against an employer, it will give the employer an opportunity to exonerate itself by showing that African-Americans and Hispanics are not arrested or convicted at disproportionately higher rates in its geographic area.
The EEOC asserts that an employer is more likely to objectively assess the relevance of a conviction if it learns of that fact after it knows the applicant's qualifications. Accordingly, the Guidance recommends that employers not ask about convictions on applications and that, if and when an inquiry is made, it be limited to convictions for which exclusion would be consistent with business necessity. Employers will meet this standard if they: (1) validate the criminal conduct screen per Uniform Guidelines on Employee Selection Procedures standards, or (2) develop a targeted screen considering the nature of the crime, time elapsed, and nature of the job (criteria derived from a court decision) and individually assess people excluded by the screen. This assessment would consist of notice to the applicant that he or she has been screened out due to a conviction and a chance for that applicant to show that the exclusion should not be applied to him or her.
Regarding the nature of the crime, an employer should consider the harm it caused, e.g., theft causes property loss; the legal elements involved, e.g., felony theft involves deception, threat, or intimidation; and whether it was a felony or misdemeanor. As for the time elapsed, while permanent bans for any offense are not consistent with business necessity, only a case-by-case determination that might involve studies on how much the risk of recidivism declines over time can determine whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard. Finally, the third criterion, the nature of the job sought, should involve an identification of the essential functions of the job, level of interaction with co-workers and others, environment in which the job duties will be performed (out of doors, private home, etc.), and amount of oversight involved.
The Guidance states that individual assessments are not required in all cases but can help employers avoid Title VII liability by allowing them to consider more complete information on applicants. Besides allowing someone to show that he or she was not correctly identified in the criminal record or that the record is otherwise inadequate, other relevant evidence includes:
• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison;
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense;
• Rehabilitation efforts, e.g., education/training;
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.
If an employer shows that its policy is job-related, a plaintiff may still prevail by showing that there is a less discriminatory alternative that serves the employer's goals as effectively as the challenged policy but that the employer refused to adopt.
The Guidance also discusses hiring policies in industries that are subject to specific laws regarding criminal convictions, e.g., security screener, federal law enforcement official, and bank employee.