A Close Up Look at the EEOC

A short and simple way of explaining the purpose of the Equal Employment Opportunity Commission (EEOC) is that it exists to lay down the ground rules on what can be considered “disqualifying information” in a comprehensive background check. The intention is to protect candidates and employees from discrimination in the workforce.

In other words, the EEOC prevents employers from using background checks however they choose even if they’re following the procedural requirements of the FCRA to the letter. Certain state legislatures also apply, interpret, or elaborate on EEOC guidelines differently so it’s important for employers to be fully informed on the laws of the state(s) in which they’re hiring.

For example, both California and Massachusetts have special restrictions on how criminal records can be used to disqualify candidates during the hiring process.

In California, employers are not allowed to investigate or allow employment decisions to be swayed by certain types of criminal records, including:

• An arrest or detention that did not result in a conviction
• Certain marijuana infractions
• Misdemeanor convictions that are older than two years

In Massachusetts, arrests without convictions are also off-limits to hiring managers. However, whether or not you reside in these states, the EEOC has issued clear enforcement guidance on how arrest records and criminal history should be handled nationwide, which we’ll cover below.

Important EEOC Considerations

The EEOC’s enforcement guidance focuses on discrimination based on race and national origin and provides clarifying information on Title VII, the analytical frameworks of “disparate treatment” and “disparate impact,” arrest records versus convictions, and employer best practices.

Title VII

Title VII of the Civil Rights Act of 1964 was established to prohibit employment discrimination on the basis of race, national origin, color, and religion. EEOC’s enforcement guidance was issued to provide further scrutiny of the way private employers as well as federal, state, and local governments impact protected classes through the stages of employment screening for hiring and retention purposes.

Disparate Treatment and Disparate Impact

The enforcement guidance takes into consideration criminal justice system statistics over the past twenty years. Recent decades have seen a commensurate increase of Americans who have “had contact with the criminal justice system” and working-age individuals with criminal records.

• 1991: 1.8% of American adults had spent time in prison
• 2001: 1 in 37 or 2.7% of American adults had spent time in prison
• 2007: 1 in 31 or 3.2% of American adults were either on probation or parole or in prison or jail.

Currently, African American and Hispanic men are arrested at 2 to 3 times the rate of other demographics according to their proportion of the general population. Enforcement guidance seeks to determine employment discrimination using two analytical frameworks to ensure that racial prejudices and stereotyping are not at play in employment decisions when it comes to vetting minority and non-minority candidates with criminal records: disparate treatment and disparate impact.

Disparate Treatment

Disparate treatment of Title VII-protected groups can sometimes be spotted with the following evidence:

• History of biased statements by employers or decision makers
• Inconsistent hiring processes (i.e., selective background checks on protected groups)
• Similarly situated comparators (i.e., individuals who are similar in every regard but belonging to a protected group being treated differently)
• Employment testing and statistical evidence (i.e., what an employer’s applicant, workforce, and criminal background check data shows)

Disparate Impact

EEOC enforcement guidance puts the definition of disparate impact plainly: when “an employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position and consistent with business necessity.”

Arrest Records Versus Convictions

• An arrest without a conviction doesn’t establish that criminal conduct has occurred, but employers may still disqualify candidates based on the conduct underlying an arrest if the position in question would expose the candidate to vulnerable groups, such as children and the elderly.
• A conviction record is generally reliable as evidence of certain disqualifying behavior, but convictions should be scrutinized on a case-by-case basis as it relates to job and business necessity for the position in question.

Employer Best Practices

The EEOC offers boiled-down guidance for best practices when using criminal record information in employment decisions.

• Do not use blanket policies that disqualify candidates based on any criminal record.
• Appropriately train hiring managers and decision-makers on Title VII and how to implement policies consistent with the measure.
• Develop a policy that
• Identifies essential job requirements and determines specific disqualifying offenses (what would make a candidate unfit for a specific job?)
• Includes an individualized assessment of the candidate.
• Keep a record of the justification for policy and procedures as well as consultations and research used in crafting them.
• Limit questions about criminal records to offenses for which exclusion would be justified for the position in question and business necessity.
• Keep all records confidential.

For more information on the EEOC and remaining compliant with your background screening practices, read the full article here.