Yesterday, April 25, 2012, the EEOC released updated guidance regarding the use of criminal records in an employment setting, entitled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”. The full text of the guidance can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. We recommend that our clients review this with legal counsel. We have provided a brief summary below which is not intended as legal advice.

The EEOC Enforcement Guidance expands on the guidance issued over twenty years ago regarding enforcement of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. This guidance once again notes that the use of criminal history records in employment decisions could potentially have adverse impact, and therefore recommends either the use of a validation study to support the consideration of specific offenses related to a specific position, or the application of the familiar factors to be considered from the Green v. Mo.Pac. R.R., 549 F2d 1158, 1160 (8th Cir. 1977), along with the opportunity for an individual assessment or review of the decision.

The factors from the Green case are already familiar to employers. They are:
•       The nature and gravity of the offense or conduct;
•       The time that has passed since the offense, conduct and/or completion of the sentence; and
•       The nature of the job held or sought.

CARCO recommends that the opportunity for individual assessment be included with the pre-adverse action letter. In the letter, the candidate would be provided both with instructions to make a factual dispute and with instructions regarding how they might provide mitigating information regarding a reported offense. CARCO would be responsible under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. to follow the appropriate re-investigation procedures, and the employer would designate an individual, position or committee to perform an individual assessment regarding the report and any candidate supplied information. The guidance in Section V.B.9 provides examples of relevant individual evidence that could be considered. The good news for employers is that the guidance seems to indicate that individual assessment is not required unless requested by the candidate.

The requirement for individual assessment means, however, that absent statutory requirements or clear job requirements, decision matrices with “knock out” language like “not eligible” or “disqualified” should be avoided. (It should be noted that the EEOC specifically expresses concern about state laws that are overly restrictive. The EEOC states in the guidance that complying with state law does not shield an employer from Title VII liability. It is unclear whether the EEOC intends to pursue legal action against employers and/or the state(s) emanating from alleged Title VII violations that result from conformance with state laws requiring specific types of criminal checks and specific “knock outs”. This is one of the most disturbing aspects of this guidance, and CARCO will be working to obtain a clarification of the EEOC’s position.)
Employers should be aware that the EEOC takes a page from the “ban-the-box” movement and recommends that employers not ask about criminal records on the application.

Throughout the guidance, examples are provided to help employers understand the concepts covered in each section.
CARCO recommends that employers pay special attention to section VIII of the guidance, “Employer Best Practices”, which summarizes many of the recommendations contained in the guidance.

CARCO, along with other leading consumer reporting agencies, played a significant role with various associations and organizations working to ensure the final guidance issued by the EEOC struck the proper balance between negligent hiring concerns and the protection of job applicants/employees and protected classes. We believe the final guidance issued by the EEOC is far more balanced as a result of those efforts, and less onerous to employers than it otherwise would have been.

We look forward to working with our clients and their legal counsel to successfully apply this guidance.