Over the past year, four major federal agencies issued significant guidance related to the use of criminal background checks in delivering employment-related services by state and local governments as well as in employment practices of private sector employers. The highlights are:
√ Don’t use arrest and/or conviction records in your decision-making.
√ If you feel you must conduct a criminal background check, then:
● Do it after you’ve determined the person meets either: (1) the essential eligibility requirements for selection and/or referral to a job or training program; or (2) the bona fide occupational qualifications (BFOQ) for the position at issue.
● Give notice to the individual that you need to conduct a criminal background check, and get the individual’s permission to do so.
● Give the individual the results of the criminal background check, and afford the individual an opportunity to explain or dispute the contents.
● Before taking an adverse action based on an individual’s arrest and/or conviction record, make sure your inquiry is “narrowly tailored to identify criminal conduct with a demonstrably tight nexus” to the position or training in question. And, you must demonstrate that you’ve considered the following factors: (1) the date of the criminal conviction (newer versus older); (2) what specific offenses demonstrate unfitness for performing a specific job or undergoing specific training; and (3) the essential requirements for the job or training, and the actual circumstances (at a home, outdoors, at a warehouse, at an office) under which the job or training will be performed.
√ Document everything you do. If your decision is challenged by a federal agency, you’ll need to demonstrate that you did not violate federal civil rights laws.
√ Keep the individual’s criminal background information confidential. Only use this information for the purpose for which it is intended.
I. Background
The federal guidance discussed in this paper stems from commonly-recited disparities in the arrest and conviction records of minorities as compared to non-minorities and how, as a result, these disparities result in disparate treatment of ex-offenders in the employment arena. The following is an example of the background cited in these documents:
In recent decades, the number of Americans who have had contact with the criminal justice system has increased exponentially. It is estimated that about one in three adults now has a criminal history record – which often consists of an arrest that did not lead to a conviction, a conviction for which the person was not sentenced to a term of incarceration, or a conviction for a non-violent crime. On any given day, about 2.3 million people are incarcerated and each year 700,000 people are released from prison and almost 13 million are admitted to – and released from – local jails.
Racial and ethnic disparities are reflected in incarceration rates. According to the Pew Center on the States, one in 106 white men, one in 36 Hispanic men, and one in 15 African American men are incarcerated. Additionally, on average, one in 31 adults is under correctional control (i.e. probation, parole, or incarceration), including one in 45 white adults, one in 27 Hispanic adults and one in 11 African American adults. Racial and ethnic disparities may also be reflected in other criminal history records. For example, although African Americans constitute approximately 13 percent of the overall population, they account for 28 percent of those arrested and almost 40 percent of the incarcerated population.
Title VI (addressing federally-assisted programs and activities) and Title VII (addressing employment practices) of the Civil Rights Act of 1964 prohibit discrimination based on race, color, and national origin. These titles prohibit both “disparate treatment” (treating members of protected groups differently based on their protected status), and “disparate impact” (the use of policies or practices that are neutral on their face, but have a disproportionate impact on members of protected groups, and are not job-related and consistent with business necessity).
The guidance documents issued by EEOC, ETA, OFCCP, and CRC make clear that individuals with criminal history records are not a protected group under the applicable civil rights laws, but these laws may be implicated with criminal records are being considered. For example, it constitutes illegal discrimination to treat whites with a criminal record more favorably than similarly-situated African Americans with the same or similar criminal record. This constitutes “disparate treatment.” And, as another examples, job announcements that categorically exclude people who have any kind of conviction or arrest, or which specify that only those individuals with “clean” criminal records need apply, will likely constitute illegal “disparate impact” because of the above-referenced racial and ethnic disparities reflected in the criminal justice system.
II. Citations and scope of applicability
As can be seen below, the guidance documents have wide-reaching implications in the area of employment services and employment practices:
U.S. Equal Employment Opportunity Commission (EEOC)
Guidance reference:
EEOC Enforcement Guidance, Number 915.002 (Apr. 25, 2012)
Applies to:
All private sector employers with 15 or more employees
U.S. Department of Labor’s Office of Contract Compliance Programs (OFCCP)
Guidance reference:
OFCCP Directive No. 306 (Jan. 29, 2013)
Applies to:
Federal contractors and subcontractors and federally-assisted construction contractors and subcontractors
U.S. Department of Labor’s Employment and Training Administration (ETA) and Civil Rights Center (CRC)
Guidance reference:
Training and Employment Guidance Letter (TEGL) No. 31-11 (May 25, 2012)
Applies to:
Public workforce system and other entities that receive federal financial assistance to operate Job Banks, to provide assistance to job seekers in locating and obtaining employment, and to assist employers by screening and referring qualified applicants for employment and/or training (includes programs and activities covered by the Workforce Investment Act and the Wagner-Peyser Act)
III. Policies of the agencies
- EEOC
The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment. This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions.
The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions.
National data supports a finding that criminal record exclusions have a disparate impact on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate treatment charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).
The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities. The Commission with closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.
This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.
- OFCCP
In light of these racial and ethnic disparities, contractors should be mindful of federal antidiscrimination laws if they choose to rely on job applicants’ criminal history records for purposes of employment decisions. Hiring policies and practices that exclude workers with criminal records may run afoul of such laws, which prohibit intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate treatment on these protected groups and cannot be justified as job related and consistent with business necessity. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of the offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.
This guidance consolidates and updates EEOC’s prior guidance regarding the use of criminal records in employment decisions. EEOC is the lead agency for interpreting Title VII, and OFFCP follows Title VII principles in interpreting Executive Order 11246, as amended. Therefore, EEOC’s guidance will assist contractors in implementing and reviewing their employment practices in compliance with the Executive Order. EEOC’s guidance applies to all employers that have 15 or more employees.
The guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.
- ETA and CRC
As recognized by the federally-assisted workforce system, which is already engaged in promoting job opportunities for people with criminal records through various reentry grants and programs, obtaining employment is critical in reducing recidivism and easing the reintegration of persons returning from incarceration. Secretary of Labor Hilda Solis recently observed that the public workforce system’s mix of strategies, interventions and service partnerships must be designed and executed with the goal of helping people with criminal records obtain employment that can support them and their families. These efforts are consistent with the Federal Interagency Reentry Council’s mission to make communities safer by reducing recidivism, assist those returning from prison and jail in becoming productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration. As Secretary Solis stated recently: “When someone serves time in our penal system, they shouldn’t face a lifetime sentence of unemployment when they are released. Those who want to make amends must be given the opportunity to make an honest living.”
This TEGL is intended to help covered entities (and their employer customers) comply with their nondiscrimination obligations when serving the population of individuals with criminal records, and to ensure that exclusionary policies are not at cross-purposes with the public workforce system’s efforts to promote employment opportunities for such workers. This TEGL applies to all jobs available through a covered entity’s job bank without regard to whether the job is in the government or the private sector, including federal contractors and subcontractors.
This guidance cites to the EEOC’s Enforcement Guidance to assist in determining the proper consideration of criminal records.
IV. “Illegal” practices
Each of the guidance papers sets forth practices that may constitute illegal discrimination in violation of applicable civil rights laws. These practices are set forth as follows:
- EEOC
● Evidence supporting discrimination. The EEOC cites to several kinds of evidence that may be used to demonstrate discrimination in violation of Title VII: (1) biased statements, such as derogatory statements by the employer or decision-maker towards a protected group, or that express group-related stereotypes about criminality; (2) inconsistent hiring practices, such as requesting criminal history information more often for individuals with certain racial or ethnic backgrounds, or giving white individuals but not racial minorities the opportunity to explain their criminal history; (3) different treatment of similarly-situated individuals, such as a racial or ethnic minority being subjected to more or different background checks or to different standards for evaluating criminal history; and (4) statistical evidence derived from the employer’s applicant data, workforce data, and/or third party criminal background history data.
● No job-relatedness, illegal. If criminal background records are utilized in employment decisions, the employer should be prepared to demonstrate that this policy or practice is “job related for the position in question and consistent with business necessity.”
● Arrest records. The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity. The Commission further notes arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed. The Commission mandates that an arrest record cannot be grounds for exclusion, but an employer may, under certain circumstances, inquire into the conduct underlying the arrest.
● Conviction records. Unlike an arrest record, a conviction usually is sufficient evidence that a person engaged in certain conduct. However, it is important to keep in mind that (1) there may be error in the record, or (2) the record may be outdated. Thus, a policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is not tailored to a particular job, or consistent with business necessity.
- OFCCP
● Blanket exclusions are illegal. OFCCP is aware of job announcements that categorically exclude people who have any kind of conviction or arrest and of contractors that screen out job seekers with criminal records by stating that they will only accept applicants with so-called “clean” criminal records. Due to racial and ethnic disparities reflected in the criminal justice system, these policies or practices will likely have a disparate impact on certain protected groups, in violation of federal law.
● Failure to consider circumstances. Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law. Accordingly, contractors should carefully consider their legal obligations before adopting such policies.
● Adopting EEOC guidance. OFCCP further cites to EEOC’s Enforcement Guidance and the ETA/CRC TEGL document for further examples of discrimination in violation of federal civil rights laws.
- ETA and CRC
● Printing and publishing. Cannot “print or publish or cause to be printed” any job announcement that discriminates based on race, color, religion, sex, or national origin unless there is a bona fide occupational qualification for a preference based on religion, sex, or national origin.
● Use of discriminatory criteria prohibited. Use of any “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color, or national origin” is illegal.
● Nondiscriminatory selection and referral. “Selection and referral of individuals for job openings or training opportunities and all other activities performed by or through employment service offices” must be done without regard to race, color, or national origin. Conduct to the contrary violates civil rights laws.
● Posting job announcements in Job Banks. Employers must be placed on notice that federal civil rights laws “generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history.” To this end, the TEGL requires that “Notice #1 for Employers Regarding Job Bank Nondiscrimination and Criminal Record Exclusions” be given to employers that register to use a Job Bank. Failure to place the employer on notice constitutes noncompliance by the Job Bank.
● WIA and Wagner-Peysner. The guidance notes the Workforce Investment Act at 29 U.S.C. § 2938 and Title VI of the Civil Rights Act of 1964 at 42 U.S.C. § 2000d require nondiscrimination by recipients of federal financial assistance, including non-discrimination in employment practices and in selection and referral for employment or training. The Wagner-Peyser Act at 20 C.F.R. § 652.8 similarly requires nondiscrimination and states must assure that discriminatory job orders will not be accepted except where there is a bona fide occupational qualification (BFOQ). Failure to consider the BFOQ of a position is illegal.
V. “Best practices”
Each guidance paper also sets forth certain “best” practices. These practices are similar among the agencies as follows:
- EEOC
● Don’t ask. The Commission recommends that employers not ask about convictions on the job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion is related to the position in question and consistent with business necessity.
● How to demonstrate business necessity. The Commission finds there are two ways in which criminal conduct exclusion will be job-related and consistent with business necessity: (1) the employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or (2) the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The Commission states that the “individualized assessment” component consists of the following: (1) notice to the individual screened out because of a criminal conviction; (2) an opportunity for the individual to demonstrate the exclusion should not be applied under the particular circumstances, and (3) consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
● Narrowly tailored. If an employer employs a criminal record screen, it must be “narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.” The employer must identify essential job requirements and the actual circumstances under which the jobs are performed. Moreover, the employer must determine the specific offenses that may demonstrate unfitness for performing such jobs. And, the employer must determine the duration of exclusions for criminal conduct (older versus newer convictions). Finally, the employer should keep a record of consultations, research, and justifications considered in developing the policies and procedures. Managers, hiring officials, and decision-makers should be trained regarding how to properly implement the policies.
● Factors for consideration. Absent validation meeting the Uniform Guidelines’ standards, the employer must consider the following factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job held or sought (identifying the job title, essential functions of the job, circumstances under which the job is performed, such as level of supervision and oversight, and the environment in which the job duties are performed, such as a warehouse, private home, outdoors.
● Training is important. Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.
● Confidentiality is important. Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
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OFCCP
● OFCCP cites to EEOC’s Enforcement Guidance, and the ETA/CRC TEGL for examples of “best practices.” This includes providing Notices 1-3 to job seekers and/or employers, as described in the ETA/CRC’s TEGL document.
- ETA and CRC
● Seeking a background check. If an employer seeks to conduct a criminal background check based on a bona fide requirement for the job, it must: (1) obtain the applicant’s permission before asking a background screening company for a criminal history report; (2) provide the applicant a copy of the report; and (3) provide the applicant a summary of his or her rights before taking any adverse action.
● Restrictive vacancy announce-ments. Covered entities should use a system (automated or otherwise) to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records. For each such vacancy announcement located, and to ensure the employer’s and covered entity’s compliance with federal civil rights laws, the employer must be given the opportunity to remove or otherwise edit the vacancy announcement. Here, the TEGL directs that “Notice #2 for Employers Regarding Job Postings Containing Criminal Record Exclusions” be provided to the employer.
If the employer continues to keep the hiring restriction in the announcement, the announcement must include a notice that the exclusions in the posting may have an adverse impact on protected groups, and individuals with criminal history records are not prohibited from applying for the posted position (referred to as “Notice #3 For Job Seekers to be Attached to Job Postings With Criminal Record Exclusions” in the TEGL document).
● Screening and referral based on criminal record restrictions. Criminal record histories may be taken into account for purposes of referring an individual to employment-related services or programs designed to aid individuals with arrest or conviction histories. However, covered entity staff should refrain from screening and refusing to refer applicants with criminal history records. Here, the guidance suggests, if an applicant’s arrest and conviction history is taken into account for purposes of excluding the individual from training programs or other employment-related services, then the EEOC’s arrest and conviction guidance should be followed.
● Confidentiality is important. Same as the EEOC.
About the author.
Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Ms. Foster also offers highly-popular procedures-writing services, such as assisting you in developing discrimination complaint procedures, procedures for serving limited English proficient individuals, procedures for serving persons with disabilities, and procedures for gathering, handling, and storing medical information to name a few. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally-assisted programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.