Tuesday, November 24, 2020


Article Index

Best Practices

The Guidance offers the following best practices for employers:

1. General

• 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.

2. Developing a Policy

• Develop a narrowly-tailored written policy and procedure for screening applicants and employees for criminal conduct.

• 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.

• Include an individualized assessment.

• 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.

3. Questions about criminal records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related and consistent with business necessity.

4. Confidentiality

• Keep information about applicants' and employees' criminal records confidential. Only use it for the purpose for which it was intended.
Major Concerns about the Guidance

The U. S. Commission on Civil Rights heard from stakeholders on December 7, 2012. Several witnesses expressed concerns about the Guidance. A Society for Human Resource Management spokesperson stated that it “places employers between a rock and a hard place” in that they could lose their license and/or be open to liability if they do not comply with state or local laws mandating criminal background checks for certain jobs, e.g., health care professional, day-care provider, teacher, police officer, and firefighter. He also said that the interpretation of disparate impact makes employers vulnerable to an EEOC investigation any time they take an adverse action against people of certain races or national origins based on a criminal background check even if they have made an individualized assessment; in effect, this makes criminal convictions a new protected status. Noting that it is unclear how finding disparate impact based on national data can be reconciled with the concept of individualized assessment, he sought clarification of this issue.

Other spokespeople complained that the Guidance places an undue burden on smaller employers and that it is unclear when individualized assessments are necessary and bright-line rules are permissible. A Heritage Foundation speaker claimed that, when it passed Title VII, Congress did not authorize the EEOC to promulgate regulations; despite this, EEOC guidance has become de facto regulations. Other critiques are that the statement that an arrest may “in some cases” trigger an inquiry into whether the underlying conduct justifies an adverse employment action is hardly a model of clarity, and the examples do not pin down when these circumstances exist. The same criticism can be raised about the statement that a conviction will “usually” serve as evidence that a person engaged in particular conduct. As well, although the Guidance states that the EEOC will closely examine whether an employer has a reputation for excluding people with criminal records, it is not explicit on how reputation will be proved.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law