The U.S. Equal Employment Opportunity Commission (EEOC) has taken a significant step toward rescinding its longstanding guidance concerning employers’ use of arrest and conviction records in employment decisions. The proposed rescission is currently undergoing federal review and has not yet taken effect.

The Guidance
In 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The guidance addresses how employers’ use of criminal history information may implicate Title VII under disparate treatment and disparate impact theories. The guidance itself does not have the force and effect of law and is intended to explain existing legal requirements and agency policy. 

Under a disparate treatment theory, an employer may violate Title VII by treating applicants or employees with similar criminal histories differently because of race, color, religion, sex, or national origin.

A facially neutral criminal history policy can also implicate Title VII under a disparate impact theory. Under the theory, the employer need not have a discriminatory intent or motive; it is enough to show that one protected group is disproportionately impacted by an employer’s policy. The theory was first recognized by the U.S. Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), where the Court explained that Title VII is directed to practices that are “fair in form, but discriminatory in operation.”

The guidance made clear that a violation of Title VII could occur if an employer treated criminal history information differently for different applicants, based on their race or national origin. It also noted that an employer’s neutral policy (e.g. excluding all applicants based on certain criminal history) could violate Title VII if the exclusion is not job related and consistent with business necessity.

In the criminal history context, the EEOC guidance identified two approaches employers could use to demonstrate that an exclusion is job related and consistent with business necessity. An employer could validate the criminal conduct exclusion under the Uniform Guidelines on Employee Selection Procedures or develop a targeted screen based on the factors identified in Green v. Missouri Pacific Railroad Co., 549 F.2d 1158 (8th Cir. 1977). Those factors include:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct, or completion of the sentence; and
• The nature of the job held or sought.

The guidance also distinguishes between arrest and conviction records. Because an arrest, standing alone, does not establish that criminal conduct occurred, the guidance cautions employers against excluding an individual based solely on an arrest record.

The guidance also laid out best practices for employers, which included:

• Eliminating blanket policies that automatically exclude applicants based on criminal history where such exclusions are not job related and consistent with business necessity;
• Training managers on Title VII and its prohibition on employment discrimination; and
• Developing a tailored policy and procedure for screening applicants and employees for criminal conduct, focusing on what criminal offenses would indicate unfitness for the role.

Impact of the Potential Rescission and Tips for Employers
The EEOC’s proposed rescission of the guidance does not mean employers should abandon careful, job-related consideration of criminal history when making employment decisions. Although the guidance may be rescinded, many of its principles are grounded in existing Title VII precedent. As a practical matter, its framework may therefore continue to provide employers with useful guidance when reviewing their hiring practices.

Importantly, rescinding the guidance would not eliminate disparate impact liability under Title VII. The disparate impact theory remains recognized by federal courts and was codified by Congress through the Civil Rights Act of 1991. The guidance itself was largely built on existing precedent, including Griggs and Green. Private plaintiffs may therefore continue to pursue disparate impact claims regardless of the EEOC’s enforcement priorities.

Although the EEOC has recently signaled that it does not intend to prioritize disparate impact investigations and litigation, the theory remains valid under Title VII, and a different administration could again prioritize enforcement in the future.

Employers should therefore continue to review how criminal history information is used in hiring and other employment decisions and ensure their policies comply with Title VII requirements and applicable state and local laws. Employers also should remember that Title VII is not the only law affecting criminal background screening. Depending on the circumstances and jurisdiction, employers may have obligations under the Fair Credit Reporting Act and state or local fair-chance, ban-the-box, anti-discrimination, and criminal-record laws. 

If you have questions about how the proposed rescission may affect your hiring practices or use of criminal background information, please reach out to attorneys Susanna Fultz, Michael Votano, or any member of Barley Snyder’s Employment Practice Group.

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