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Impact of EEOC Guidance

Impact of EEOC Guidance on Use of Criminal Background Checks in Employment Decisions

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” States participating in the National Background Check Program (NBCP) should consider this guidance document carefully, as it may affect long term care (LTC) providers in their State.

Answers to frequently asked questions about the impact of the EEOC guidance follow.


What does EEOC have to do with my State?
What obligations do employers have under Title VII?
Why are the requirements of Title VII relevant to States participating in the National Background Check Program?
Can the use of criminal record checks in making hiring decisions violate Title VII?
Why did EEOC issue guidance on the use of criminal background record checks?
Does EEOC prohibit the use of criminal records in making employment decisions?
What factors should an employer consider when establishing criminal record exclusions to ensure they are “job related and consistent with business necessity”?
What factors should an employer not consider when establishing criminal record exclusions?
What is the “individualized assessment”?
How long may persons with criminal records be excluded from employment at LTC facilities?
What factors should employers consider when conducting an individualized assessment?
Where can I find more information about setting criminal record exclusions in my State?
Endnotes


What does EEOC have to do with my State?

The EEOC is the Federal agency that enforces Title VII of the Civil Rights Act of 1964. Title VII is a Federal law that applies to most public and private employers with 15 or more employees. Employers covered by Title VII must comply with its requirements.

What obligations do employers have under Title VII?

Title VII prohibits covered employers from discriminating against job applicants and employees on the basis of race, color, religion, sex, or national origin. Employers may not discriminate against members of these protected classes when making hiring, termination, or other employment decisions.

Why are the requirements of Title VII relevant to States participating in the National Background Check Program?

LTC providers with at least 15 employees must comply with Title VII. They also must abide by their State’s NBCP legislation. For both to be possible, it is important that participating States take into account the requirements of Title VII as they define criminal record exclusions in writing their enabling legislation and regulations. When the Federal and State requirements coincide, LTC providers are able to comply with background check requirements, provide equal employment opportunity for all qualified applicants, and avoid liability under Title VII.

Can the use of criminal record checks in making hiring decisions violate Title VII?

Yes, in certain situations. Employers violate Title VII when they treat applicants who have the same criminal history differently because of their race, color, religion, sex, or national origin. This violation is “disparate treatment discrimination.” Employers also violate Title VII when they exclude applicants based on their criminal history such that members of a protected class are disproportionately and without justification excluded. This violation is “disparate impact discrimination.”

Disparate impact discrimination can occur even when an employer applies criminal record exclusions uniformly, such as excluding anyone convicted of a drug crime in the past 10 years. The employer could be in violation of Title VII on the basis of race, for example, if the exclusion has a disparate impact on applicants of some races versus others, and if the exclusion is found to be unrelated to the position sought. That is, disparate impact discrimination may have occurred even though the exclusion was applied on the same basis to members of all races.

Why did EEOC issue guidance on the use of criminal background record checks?

The EEOC concluded that excluding persons from employment based on their criminal history may have a disparate impact based on race and national origin. The EEOC made this determination relying on statistical evidence that arrests among African Americans and Hispanics are disproportionate to their presence in the population. Members of these two groups also are more likely than Whites to be convicted or sentenced for drug offenses, while drug use rates among the three groups are similar. Incarceration rates among African Americans and Hispanics also are highly disproportionate to their presence in the population.

Does EEOC prohibit the use of criminal records in making employment decisions?

No. According to EEOC, criminal records may be used to exclude persons from employment so long as doing so is “job related and consistent with business necessity.”

What factors should an employer consider when establishing criminal record exclusions to ensure they are “job related and consistent with business necessity”?

According to EEOC, exclusions are “job related and consistent with business necessity” when the exclusion policy effectively connects the person’s criminal conduct with the risks associated with the duties of the position sought. This connection may be established using a “targeted screen” that examines the following factors:

  • Nature and gravity of the offense or conduct
  • Time passed since the offense, conviction, and/or sentence was completed
  • Nature of the particular job held or sought.

In addition, people who have been screened and excluded from employment should be given the opportunity for an “individualized assessment” to determine whether, based on the particular circumstances, the exclusion policy as applied was “job related and consistent with business necessity.” [1]

What factors should an employer not consider when establishing criminal record exclusions?

  • Arrest records (as opposed to conviction records)
  • Federal juvenile adjudications
  • Expunged matters
  • Federal sealed records.

State laws also may limit consideration of additional information.

What is the “individualized assessment”?

As described in the EEOC guidance, “individualized assessment” is the process by which employees or applicants are informed that they have been excluded from employment because of their past criminal conduct. The process provides them with the opportunity to show that the exclusion should not apply. For example, an applicant for work at a LTC facility might show the exclusion should not apply because he was mis-identified on the rap sheet or because of other inaccuracies in the record. The individualized assessment also allows individuals to demonstrate that the exclusion policy, as applied to them, is not job-related or consistent with business necessity.

The federal legislation that established the NBCP program provides for individualized assessments by requiring NBCP States to establish an appeal process.

How long may persons with criminal records be excluded from employment at LTC facilities?

There is no set time period for exclusion. Further, the EEOC guidance prohibits “automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct.” Lacking consideration of the impact of the offense or conduct on the person’s fitness to perform the job, such blanket exclusions are not “job related and consistent with business necessity.”

Instead, EEOC encourages the use of empirical data on recidivism over time in setting exclusion periods. One helpful resource is the Report of the CMS Long Term Care Criminal Convictions Work Group.

What factors should employers consider when conducting an individualized assessment?

NBCP legislation requires consideration of the following factors:

  • Passage of time
  • Extenuating circumstances
  • Demonstration of rehabilitation
  • Relevancy of the particular disqualifying information with respect to the person’s current employment.

In addition to those mentioned earlier (being mis-identified in the record or other inaccuracies), the EEOC guidance provides examples of other factors that may be considered in the individualized assessment:

  • Facts or circumstances surrounding the offense or conduct
  • Number of offenses for which the person was convicted
  • Older age at the time of conviction or release from prison
  • Evidence that the person performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct
  • Length and consistency of employment history before and after the offense or conduct
  • Rehabilitation efforts, such as education or training
  • Employment or character references and any other information regarding fitness for the particular position
  • Whether the person is bonded. [2]

Other factors may be considered, if they are determinant of whether the exclusion is job related and consistent with business necessity.

Where can I find more information about setting criminal record exclusions in my State?

This resource document addresses EEOC’s position on the application of Title VII of the Civil Rights Act of 1964, a federal law. State and local laws may contain additional requirements that may affect providers’ use of criminal background checks in employment decisions.

Endnotes

  1. According to the EEOC guidance: “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.”
  2. Bonds are obligations to protect an employer from employee-dishonesty losses and act as insurance policies. These insurance policies protect from losses of company monies, securities, and other property from employees who have a manifest intent to cause the company loss.