Webcast Offers Insight into New Criminal Background Guidance

By SHRM Online staff May 15, 2012

The substance and impact of new Equal Employment Opportunity Commission (EEOC) guidance on criminal background checks and its effect on the hiring process was the thrust of a Society for Human Resource Management (SHRM) webcast in May 2012, part of SHRM’s ongoing series on emerging public policy issues that affect employers.

Attorney and former vice-chair of the EEOC Leslie E. Silverman, Esq., a partner at Proskauer Rose LLP in Washington, D.C., was the speaker during the webcast addressing the EEOC guidance titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”

In her presentation Silverman offered scenarios to clarify how an employer’s use of a person’s criminal history in making employment decisions could violate Title VII’s prohibition against employment discrimination.

“It does not prohibit the use of background checks,” she said of the EEOC guidance.

The 90-minute webcast came in the wake of the EEOC’s new Enforcement Guidance, issued April 25, 2012, after a 4-1 vote by the commissioners. The guidance consolidates and supersedes previous EEOC policy statements on using criminal history to make employment decisions and addresses the difference between arrest and conviction records, Silverman told listeners.

The new enforcement guidance updates guidance the EEOC last issued more than 20 years ago, Silverman said, and she outlined the six reasons the EEOC issued new guidance. Among those reasons are the increase in the number of people with criminal records in the working-age population, employers’ increased access to criminal history, and recent studies that have found a number of criminal record databases are inaccurate or incomplete, she said.

Treat Arrests, Convictions Differently

Among the points Silverman discussed and illustrated with examples during her presentation:

*The new guidance acknowledges that Title VII of the Civil Rights Act does not directly protect individuals with criminal records.

*Disparate treatment and the disparate impact of using criminal records in employment decisions.

*Job-related and business-necessity defenses in making employment decisions based on criminal history.

This relates to the nature or gravity of the candidate’s offense or conduct; the time elapsed since the offense, conviction and/or completion of the sentence occurred; and the nature of the job the candidate applied for or held. The EEOC guidance emphasizes that arrests and convictions should be treated differently, Silverman stressed.

Whether an employer’s reliance on criminal records to deny employment violates Title VII depends on if that reliance is part of employment discrimination based on race, national origin or other protected classes.

For example, basing a decision not to hire a black applicant on his criminal history, but hiring a white applicant with a similar criminal history and comparable skills would show disparate treatment, she explained.

Disparate impact deals with the text of an employer’s policy and how the organization implements that policy. What offenses or classes of offenses were reported to the employer by the agency it uses to do background checks? Does the employer look at convictions regardless of whether those convictions were sealed or expunged? Does the employer look at databases that reveal arrests that did not result in conviction?

Under the EEOC guidance, arrests are not grounds for excluding a candidate because arrests do not establish that criminal conduct occurred. However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies adverse employment action, according to Silverman.

An employer may base a hiring decision on the underlying conduct if the employer makes an inquiry and determines that the conduct makes the individual unfit for the position in question. Underlying conduct, not the arrest itself, is relevant, Silverman said.

“People with a criminal background are not a protected class,” said Lawrence Z. Lorber, Silverman’s colleague at Proskauer Rose, during the webcast’s question-and-answer session. “You do not have to accommodate that type of situation. It’s the treatment of the criminal background that has an adverse impact,” he said.

Silverman shared the following employer best practices that the EEOC appended to its guidance, which she said is “fairly unusual for the agency to do.”

*Eliminate policies that impose an absolute bar to employment that is based on any criminal record.

*Train hiring managers about the appropriate use of criminal history in employment decisions.

*Refine job-screening procedures to ensure that they are job related and consistent with business necessity.

*Limit inquiries into criminal history to those for which exclusion would be job related and consistent with business necessity.

*Keep information about applicants’ and employees’ criminal history confidential.

While not part of the guidance, the best practices offer the federal agency’s “view on how employers should respond to the guidance,” she said, “recognizing an employer is not legally required to [follow] a best practice.”

SHRM has archived the presentation through December 2012 for which participants can earn 1.5 PHR and SPHR recertification hours.

Related Articles

Criminal Background, HR Magazine, February 2012

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