This post was contributed by Eric N. Athey, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Lancaster, Pennsylvania.
According to the Equal Employment Opportunity Commission ("EEOC" or "Commission"), if current incarceration rates continue, 1 in 3 African-American men and 1 in 6 Hispanic men will be incarcerated during their lifetimes. The rate for white men is only 1 in 17. Given this disparity in incarceration rates, the EEOC has long been concerned that employer policies restricting hiring based on prior criminal convictions may unfairly deprive minorities of employment opportunities. In Enforcement Guidance issued on April 25, 2012, the EEOC outlined its approach for determining whether an employer's criminal history screening policies violate Title VII on the grounds of either "disparate treatment" or "disparate impact."
Disparate Treatment. Obviously, employers cannot hold applicants to tougher screening standards on the basis of their race or national origin. An employer that considers an applicant's prior criminal history during the hiring process must do so on a consistent, non-discriminatory basis. A disappointed minority applicant with a criminal history may be able to prove he was subject to unlawful discrimination by showing inconsistencies in the hiring process, derogatory statements regarding a particular class or evidence suggesting that certain protected classes are held to a stricter screening standard than other groups.
Disparate Impact. Under Title VII, employers may also be liable for hiring policies that are consistently enforced if the policy disproportionately screens out a particular protected class and the employer cannot show that the policy is job-related for the position and consistent with business necessity. The EEOC's recent Guidance notes that an employer may be liable for the "disparate impact" of a hiring policy even if the employer has a racially balanced workforce. In order to establish that a hiring policy that relies on criminal history information is job-related for the position and consistent with business necessity, the employer will need to show that it operates "to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." The EEOC notes two ways an employer can establish this: 1) by validating the criminal conduct screen for the position under the Uniform Guidelines on Employee Selection Procedures; or 2) developing a "targeted screen" which considers a number of factors, including the nature of the crime, the time elapsed and the nature of the job and then conducting an individualized assessment for the people excluded. In other words, if a screening policy has a disparate impact on certain protected classes, an employer must be able to show that the policy is nevertheless reasonable and necessary.
Other Laws. Title VII is only the tip of the iceberg when it comes to laws governing the use of criminal background checks in hiring.
Employers who use these checks also need to be aware of their responsibilities under the Fair Credit Reporting Act and the Pennsylvania Criminal History Information Act. In addition, some industries (e.g. banking, insurance, public schools) are subject to specific legislation prohibiting the hiring of individuals with certain types of prior convictions. Finally, there is a growing number of municipalities, including Philadelphia, that have passed "ban the box" ordinances that specifically prohibit employers from even asking about prior convictions until late in the hiring process.
What's an Employer to do? Several things are clear from the recent EEOC guidance. First, employers should not adopt blanket rules prohibiting the hiring of anyone with a prior conviction. Secondly, if screening procedures are not statistically validated, then the employer should develop a "targeted screen" that is "narrowly tailored" and that considers multiple criteria when determining whether a prior conviction renders an applicant unsuitable for a position – these include: the nature, severity and age of the offense, the nature of the job, the number of offenses, subsequent employment and rehabilitation efforts. Third, consideration of arrests that do not lead to convictions generally should not be considered.
Given the recent attention that criminal history screening has garnered from the EEOC and various municipalities, it is likely that employers will see increasing challenges from applicants who are rejected due to prior convictions. If you have any questions regarding the EEOC Guidance or this article, please contact a member of the McNees Labor and Employment Law Practice Group.