The following are excerpts of the “Summary” and “Introduction and Background” sections of a briefing paper from the U.S. Commission on Civil Rights. For the complete text of the briefing paper, go to www.usccr.gov.
On December 7, 2012 the United States Commission on Civil Rights held a briefing to examine the disparate impact provisions of the Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance concerning the use of criminal background histories (2012 Guidance or “new guidance”). The Commission wished to learn about the effects of the EEOC’s revised policy on employers and on black and Hispanic applicants with or without a criminal record.
The briefing’s seventeen speakers included a high-ranking EEOC official, scholars, attorneys, social scientists, personnel executives, a former offender now policy director of an advocacy and job placement service, a family member of a victim slain by an unscreened exconvict sent to the victim’s home as a contractor six months earlier, ex-felon advocacy groups, business associations representing home care, small business and retail, and a security company currently under investigation by the EEOC.
The speakers gave views on the effects of the 2012 Guidance, its legal complexities, the sufficiency of its evidentiary basis, and on whether the 2012 Guidance would result in a negative disparate impact on the very groups the agency intends to protect. Former-offender advocacy groups welcomed the 2012 Guidance for its virtual prohibition on blanket exclusionary policies and its strongly suggested consideration of applicants and employees with criminal records of many kinds on a narrowly drawn or case-by-case basis. These records included arrest records only, criminal citations, misdemeanor convictions, expungements, and felony convictions, among others. Speakers representing employers discussed whether the majority of employers, who for legal, statutory mandate, business and/or safety reasons must exclude applicants with particular criminal convictions, might as a result reduce hiring overall, increase automation, or move some jobs overseas. Some thought that such reduction in hiring of entry-level workers would likely have the unfortunate effect of disproportionately lowering job opportunities and reducing employment among blacks and Hispanics.
INTRODUCTION AND BACKGROUND
Disparate impact theory posits that any use of a selection method that is facially nondiscriminatory may still be held discriminatory if it affects proportionally more of one protected group than of another, and the selecting entity, in this case an employer, cannot show that the selection criteria are job-related and consistent with business necessity.
Disparate impact theory is invoked by plaintiffs in private discrimination suits and by various
enforcement agencies. In addition to the EEOC, examples of such enforcement agencies are the U.S. Department of Justice’s Civil Rights Division, the U.S. Department of Housing and Urban Development, the Consumer Financial Protection Bureau, and the U.S. Department of Education, among others.
The EEOC’s mission is enforcement of anti-discrimination and other federal equal employment opportunity laws as authorized under Title VII of the Civil Rights Act of 1964 (the Act). Since the statute does not authorize the agency to issue regulations on this subject, the agency makes known its interpretation of the statute by issuing guidance and policy statements. Employers excluded by statute from its jurisdiction are those with fewer than 15 employees and American Indian tribes. The U.S. Department of Justice litigates Title VII against States and municipalities.
The Civil Rights Act as passed in 1964 did not address disparate impact, although the Supreme Court accepted disparate impact theory with regard to intelligence tests and high school graduation requirements in the 1971 case Griggs v. Duke Power Company. Twenty-five years after the Act’s passage, Congress amended the Act’s Title VII to include disparate impact discrimination as a statutory basis for suits against employers as part of the Civil Rights Act of 19916 after a series of Supreme Court decisions that weakened the reach of disparate impact theory. The amended law did not address criminal histories, and the EEOC’s 2012 Guidance acknowledges that “having a criminal record is not listed as a protected basis in Title VII.” Since at least 1972,9 however, the EEOC has asserted that disparate impact theory drawn from the Griggs decision forbids the blanket exclusion by an employer of all applicants with criminal histories. The EEOC does not prohibit or restrict employers from asking for or obtaining background histories, although eliminating the question from the face of an application is identified as a “best practice” and some members of the public who submitted comments appear to believe that it is still considering the elimination of the question. Many of the public comments sent to the EEOC concerning its new guidance mistakenly objected to the perceived restriction or prohibition against obtaining background checks.
To pursue a claim under Title VII in federal or state court, an aggrieved applicant or employee must first file a charge with EEOC or with a state or local fair employment practices agency authorized to accept charges on the EEOC’s behalf. If the EEOC investigates and does not find reasonable cause to believe that discrimination occurred, it will automatically send the charging party a “Notice of Right to Sue,” after which the charging party will have 90 days to file a lawsuit.
If EEOC investigates and finds reasonable cause to believe that discrimination occurred, the agency will attempt to resolve the charge informally through conciliation. If the attempt to conciliate the charge is unsuccessful, the EEOC will decide whether to file suit. If EEOC decides not to file suit, it will send the charging party a Notice of Right to Sue, and the same 90-day suit-filing period will apply. Once a Notice of Right to Sue has been issued, the agency usually takes no further action on the charge. If EEOC does file suit, the charging party may intervene in that lawsuit but generally may not sue separately. In any lawsuit the EEOC’s policies and guidance statements remain important but not necessarily dispositive considerations for a court in deciding the outcome.
The EEOC’s 2012 Guidance is the most recent policy statement conscribing employee selection. It supersedes all earlier criminal history policies. Because the 2012 Guidance is so recent, Commission briefing speakers based their comments on its expected effects, in addition to the EEOC’s enforcement policy and actions under prior guidances issued in 1987 and 1990.
Still in force are the 1978 Uniform Guidelines on Employee Selection Procedures (1978 Selection Guidelines) on allowable methods of selection. The 1978 Selection Guidelines, issued 35 years ago and not updated since, are in use by various federal agencies. Critics of the 1978 Selection Guidelines allege that accepted standards incorporating advances in validity generalization are not available to employers under these guidelines. Validity generalization would allow employers to develop employee qualification standards that would be applicable to a class of jobs, not just one job. Although the 2012 Guidance acknowledges as a legitimate selection concern the physical or other security risks to customers or other employees inherent in hiring any employee, it leaves employers exposed to the discretionary judgment of the EEOC as to individual hiring decisions.
Among those policies apparently superseded is the 1987 policy distinguishing between crime-specific and non-crime-specific data to control employers’ use of statistical data in excluding former offenders (1987 Statistics Policy). This policy allowed employers where the policy was crime-specific to present data showing that their practices would not adversely affect blacks and Hispanics in the employer’s actual pool as to that particular crime; the new guidance also allows employers to make this showing. Also superseded is the 1990 policy guidance restricting employers’ use of arrest records (1990 Arrest Records Policy); the policy limiting but not eliminating use of arrest records is now included in the new guidance.
The Title VII statute does not distinguish between intentional and inadvertent actions, meaning that an employer may make good-faith efforts to adhere to the guidance and still be in violation of the law. The EEOC has the authority to bring a systemic investigation against several employers alleging a pattern or practice of discrimination and add additional affected employees and/or bases such as national origin.
Some years ago, the EEOC began an initiative called “E-RACE” that adds greater scrutiny to employer practices such as making hiring selections based on “names, arrest and conviction records, employment and personality tests, and credit scores.” The 2012 Guidance does not discuss the relation of E-RACE to the Guidance.
The 2012 Guidance states categorically that any employer policy disfavoring persons with criminal records disproportionally affects racial and ethnic minorities, particularly black or Hispanic with criminal records nationwide. It bases this declaration on data from the U.S. Department of Justice’s Bureau of Justice Statistics showing nationwide conviction rates of blacks and Hispanics disproportionately higher than their representation in the general population of the United States. The EEOC cautions employers against drawing conclusions driven by racial or ethnic animosity, as well as decisions infected by stereotyped thinking which might lead an employer to reject a black or Hispanic applicant based on a higher than average likelihood of a criminal history.
Based on its statistical information, the EEOC regards as likely disparate impact any exclusion of a black or Hispanic job applicant or employee with a criminal record. This would hold true regardless of the type of crime, the type of job, the location, or the nature of the employer’s business, unless the employer uses what the EEOC considers a narrowly drawn or “targeted” screen that does not exclude all persons with criminal records, or enquires into the details of each applicant’s history to determine suitability and establishes a rationale that is consistent with business necessity. The EEOC defines “targeted exclusions” as “an employer policy or practice of excluding individuals from particular positions for specified criminal conduct with a defined time period, as guided by the Green factors.”
The “Green” factors were set out in 1977 in a three-judge panel decision of the Eighth Circuit Court of Appeals, Green v. Missouri Pacific Railroad. The Green factors are 1) the nature and gravity of the offense; 2) the time passed since the offense and/or completion of the sentence; and 3) the nature of the job held or sought.
The EEOC, as is true of many other federal agencies, has broad investigative powers. The EEOC’s 2012 Guidance states that the agency may investigate a charge in light of its national data on disparate impact and consider contrary data provided by employers. In the context of litigation, however, existing disparate impact case law requires a plaintiff to bear the initial burden of proof.
The EEOC held two public meetings prior to the publication of the 2012 Guidance. At the public meeting in November 2008 the EEOC invited eight speakers–six in favor of its views and two opposed. In July 2011, the EEOC held another public meeting to which ten speakers were invited, eight generally supporting the EEOC’s stated views,37 and two possibly somewhat equivocal.38 The law does not require, and the EEOC did not provide, a draft of the new guidance to meeting speakers or the public on either occasion, nor did it provide a draft at any time before the guidance was issued. The EEOC received approximately 300 written public comments for the 2011 meeting, many from ex-offenders and advocacy organizations supporting limits on using criminal histories, many from individuals, groups and businesses opposing restrictions on use or the elimination of background checks. The EEOC did not respond publicly to comments or speaker testimony but says it considered them in its deliberations, and in fact, the new guidance does not forbid or restrict employers from obtaining background checks.
The 2012 Guidance is couched largely in a series of factual examples followed by “best practices,” rather than commands. In the briefing, EEOC speaker Carol Miaskoff stated categorically that it does not require individualized consideration, although the 2012 Guidance could reasonably be read as strongly recommending this approach. The text states that Title VII “does not necessarily require individualized assessment in all circumstances …the use of a screen that does not include individualized assessment is more likely to violate Title VII … [and] the use of individualized assessments can help employers avoid Title VII liability…” Employer counsel at the briefing clearly viewed this warning to mean that any use of criminal history for a protected class member without individual assessment was presumptively illegal and in fact they would be highly vulnerable to suit, an impression contrary to what the EEOC says it intended.
Once a claim is brought against an employer, the 2012 Guidance provides that the employer may defend against the charge by showing that its policy does not cause a disparate impact, using local conviction rates for blacks or Hispanics and/or its own job application data. The Guidance allows the EEOC to reject the showing, however, if it concludes that some applicants who might be in the applicant pool have been discouraged from applying because of the employer’s reputation in the community. The Guidance does not indicate the method of assessment, which potentially complicates the employer’s efforts to comply.
The employer may also defend against the charge by demonstrating that its policy or practice is job-related for the position in question and consistent with business necessity. The EEOC believes there are two established legal or evidentiary criteria for successfully making such demonstration. One is the formal validation for each specific job under the rarely used 1978 Uniform Guidelines on Employee Selection Procedures mentioned above and the other is the creation and use of a specific analysis for each job description that considers the “Green” factors and an individualized assessment. The 2012 Guidance does not address or acknowledge the practical difficulties of performing individualized assessments in largescale hiring by an employer.
The new guidance emphasizes individualized assessment in part because it asserts that former offenders pose risks that are overestimated by employers, particularly as the years pass with no further convictions. Speakers and advocacy groups at the briefing who work with former offenders supported this view, and gave examples of States in agreement that have passed laws restricting the use of criminal histories after a certain number of years without recidivism, and the groups’ own successes placing ex-offenders they screen who become valued employees.