In the past, employers have instituted blanket hiring practices focused on arrest and conviction records. Many employers have refused to interview or ultimately hire individuals with arrest and conviction records. With the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (the "Guidance"), employers should be cognizant of and revisit their hiring and employment decision practices involving individuals with a past criminal history. The Guidance states that such policies may violate Title VII if they have a disparate impact on a protected group, such as a minority.
The Guidance explains that, under Title VII, there is a two step analysis for determining whether an employer’s policy violates the statute on a disparate impact theory:
(1) The plaintiff must demonstrate that the policy has a disparate impact on a protected group. In other words, a plaintiff must show that the practice, although neutral on its face, actually has a greater impact on minorities or some other protected group. The Guidance points out that “[a]rrest and incarceration rates are particularly high for African American and Hispanic men.” Thus, a policy based on incarceration or arrest is likely to have a disparate impact on African American and Hispanic men.
(2) Once the plaintiff proves that the policy has a disparate impact, the employer has the burden of proving that “the challenged practice is job related for the position in question and consistent with business necessity.”
The Guidance discusses the differences between arrest and conviction records. By itself, an arrest does not establish that criminal conduct has occurred. It is simply an arrest and in many cases an arrest has not lead to a conviction in criminal cases. Arrests are not proof of any criminal conduct. An employer should not make an employment decision based solely on an arrest by an employee or an applicant for employment.
In some circumstances, however, an arrest may justify a further inquiry into the underlying conduct that caused the arrest in the first place. Title VII calls for a fact-based analysis to determine if an employment-related policy or exclusion on hiring is job related and consistent with a business necessity. It is the conduct and not the arrest itself that the employer must examine before making an employment-related decision. If the conduct that lead to the arrest makes an individual unfit for a specific job or position, then the employer can make an employment decision based on the underlying conduct.
A conviction, on the other hand, will usually serve as sufficient evidence that a person engaged in particular conduct and an employer may be in a better position to make an employment-related decision based on a conviction. This is based on the procedural safeguards associated with trials and guilty pleas. However, an employer should be cognizant of the fact that criminal records are not always accurate and are sometimes out of date. For example, a record may be later expunged.
The Guidance recommends that an employer not ask about convictions on job applications and that when an employer does make an inquiry into a conviction, that any job related decision be consistent with a business necessity as in the case of conduct leading to an arrest.
In sum, the Guidance recommends that employers eliminate blanket policies that exclude people from employment based on any criminal records. An employer could violate Title VII by having such blanket policies if the policies have a disparate impact on a protected group and the employer cannot prove that the policy is job related and consistent with business necessity.