Many employers conduct a criminal history check with the background investigation of applicants as it is both reasonable to do so, and in some circumstances necessary to do so to avoid claims of “negligent hiring”. Some businesses cannot legally employ felons and others simply do not wish to have “felons” as employees. However, there is evidence that exclusions from employment, based on criminal records, disproportionately affect people along lines of race and national origin. So when an employer uses a criminal record in an employment decision, it may violate both California law and Title VII.
To eliminate the potential discrimination based on the protected classifications of race and national origin, the EEOC has recently issued an updated “Enforcement Guidance entitled “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII” (Guidance).
The EEOC’s Guide is not federal law nor a regulation, but it does reflect the EEOC’s position on this issue and what the EEOC will likely be looking for during an investigation into a claim of discrimination.
The Guidance specifically provides two examples of how the use of the criminal history can have discriminatory consequences:
- A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment).
- An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact).
CONVICTIONS:
Generally, under federal law, employers should not use the criminal conviction history of an applicant or employee in employment related decisions. The EEOC provided an example to demonstrate how discriminatory decisions can be made:
EX: Two equally qualified job applicants (one Caucasian and one African American) disclose that they plead guilty in high school to possession and distribution of marijuana. Now they have not had any involvement with any criminal activity.
The Caucasian applicant gets an interview and progresses in the hiring process because his conviction was considered a youthful indiscretion.
The African American candidate was not considered as he was considered a “drug-dealer type” and he was removed from the hiring process before he can ever be interviewed. This is evidence of discrimination based on race.
Job Related & Business Necessity:
If an employer can establish that a conviction exclusion is both “job related” and “consistent with business necessity”, an exception may exist which permit the use of a conviction record. Employers should note that in most instances, an across the board exclusion based on criminal record will not be considered either job-related nor consistent with a business necessity and likely result in an adverse finding against the employer.
The employer must consider an evaluation of at least the following factors :
• The nature and gravity of the crime;
• The time elapsed since the offense; and
• The nature of the job.
Then an employer must:
- Provide notice to the individual that he/she has been screened out because of past criminal conduct;
- Provide an opportunity for the individual to demonstrate that he/she should not be excluded due to the particular circumstances; and,
- Provide consideration as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the exclusion of this individual is not job related and consistent with business necessity.
EMPLOYMENT APPLICATION INQUIRIES RE CONVICTIONS:
Most employment applications inquire if the applicant has ever been convicted of a crime.
California law: Inquiries relating to criminal convictions on applications are not prohibited. This information enables a potential employer to conduct a thorough background check and make employment related decisions if the applicant failed to disclose a conviction and one was discovered during the background check. This should be considered falsification of information on the application and grounds to discontinue consideration for employment.
Federal EEOC Guidance: While this inquiry was not “banned” by the EEOC, the Guidance recommends that “employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquires be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
The rationale for not asking on the initial application form is that the employer is more likely to objectively assess the relevance of the conviction if it becomes known once the employer has already learned of the applicant’s qualifications and experience.
CONVICTIONS FOR MARIJUANA RELATED OFFENSES:
California law: Employers may not inquire about convictions for most marijuana related offenses more than two years old.
ARREST RECORDS:
Federal Guidance: Use of an arrest record has a discriminatory impact on applicants. Use of arrest records is not considered “job related” nor consistent with business necessity and hence may not be considered.
California law: Also prohibits an employer from asking a job applicant (nor obtain such information from any other source) about an arrest or a detention not resulting in a conviction, nor inquire about any referral to a criminal diversion program in an employment related decision including hiring, promotions, training or terminations. An employer MAY inquire about any arrest for which an applicant or employee is out on bail or on their own recognizance pending trial.
SEX OFFENDER ARRESTS AND CONVICTIONS:
California law: Employment related decisions may not be based on information pertaining to sex offenses and information which may be posted on Megan’s Law website. Use of any information disclosed under Penal Code §§ 290.4 or 290.46 is prohibited for purposes relating to employment.
Any use of information for a prohibited purpose, such as employment, makes the user liable for actual damages and an amount not exceeding three times the amount of actual damage and not less than $250, and attorney’s fees, exemplary damages, or a civil penalty not exceeding $25,000.
What Should I Do?
- Eliminate automatic ban policies and practices that completely exclude all applicants from employment based on criminal records;
- Develop narrowly tailored policies and practices for screening applicants and employees for criminal conduct;
- Determine specific criminal offenses that may result in a prohibition of employment based on all available evidence (including any specific rules or regulations by which your business may be governed such as Title 22);
- Document the justification for your policy and procedure regarding use of criminal records for employment decisions;
- Include an individualized assessment process to determine if the employee or applicant’s own criminal record should preclude employment;
- Limit inquiries about criminal history to those that are job-related and consistent with business necessity;
- Train managers, hiring officials and decision makers on the proper use of criminal history records;
- Keep information about criminal records strictly confidential and not in the personnel file.