The Use of Criminal History in Employment Decisions



We are writing to advise you of a recent enforcement guidance (“the Guidance”) issued by the U.S. Equal Employment Opportunity Commission (“the EEOC”) regarding the use of a person’s criminal history in employment decisions. The Guidance does not pronounce any new law or policy on this issue. Rather, its stated purpose is to consolidate long-standing EEOC policies and, based upon updated research about arrest and conviction rates among various races and national origins, to provide a more detailed legal analysis concerning how an employer’s use of an individual’s arrest or conviction record could constitute unlawful employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”).

The EEOC enforces several federal anti-discrimination laws, including Title VII, which applies to most public and private sector employers with at least 15 employees. Title VII prohibits employers from harassing or discriminating against applicants or employees based on race, color, religion, national origin or sex (including pregnancy). It also prohibits employers from retaliating against individuals who assert their Title VII rights.

Title VII Liability

Although Title VII does not directly prohibit an employer from making employment decisions on the basis of arrest or conviction records, an employer’s improper use of these records could violate Title VII’s prohibition on employment discrimination based on race, color, religion, national origin or sex (including pregnancy). The Guidance describes how Title VII liability for employment discrimination is determined using both disparate treatment and disparate impact discrimination analyses and how these well-established frameworks are applied to the use of one’s criminal history.

  • Disparate Treatment Liability. The Guidance states that an employer may be subject to Title VII liability if it rejects an applicant based on an applicant’s criminal record but hires another similarly situated applicant with a comparable criminal record who is of a different race, national origin or other protected group. An employer’s decision to reject an applicant based on racial or ethnic stereotypes about criminality, rather than the applicant’s qualifications, also constitutes unlawful disparate treatment.
  • Disparate Impact Liability. An employer may be subject to Title VII liability if an individual is able to show that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and if the employer fails to demonstrate that the policy or practice “is job related for the position in question and consistent with business necessity.” This policy or practice is one that would appear fair and neutral but, when implemented, would disproportionately exclude members of a Title VII-protected classification.

For example, a policy of refusing to hire all applicants with a criminal record, regardless of the type of conviction, would appear neutral. But if that policy excludes an excessive percentage of a particular protected class from employment and if the employer cannot show that the practice is job related for the position and consistent with business necessity, the employer could be liable for disparate impact discrimination pursuant to Title VII.

The Guidance states that national data (including statistics showing that, in 2010, African American men were incarcerated nearly seven times more than Caucasian men and almost three times more than Hispanic men) supports a finding that employer policies excluding all applicants with a criminal record from potential employment could have a disparate impact based on race and national origin. During an EEOC investigation, however, an employer may show that its policy or practice does not cause a disparate impact on a protected group by presenting regional or local data to the EEOC showing that African Americans and/or Hispanics are not arrested or convicted at disproportionately higher rates in the employer’s geographic area. An employer may also use its own applicant data to show that its policy or practice has not created a disparate impact. Evidence that an employer has a racially balanced workforce, though, will be insufficient to disprove disparate impact. As explained in the Guidance, the relevant “issue is whether an employer’s policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities.”

Arrests Versus Convictions

According to the Guidance, an arrest record alone may not be used to deny an employment opportunity because it does not establish that criminal conduct has actually occurred. An employer may, however, make an employment decision based upon the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.

The EEOC recommends that employers refrain from asking about convictions on job applications and that, if and when they do make these inquiries, that the inquiry be limited to convictions for which exclusion would be job related and consistent with business necessity. For example, an employer may prohibit anyone with a recent conviction for burglary, robbery, larceny or identity theft from working in a position with access to personal financial information.

New York Law

The Guidance provides that, if an employer’s policy or practice is not “job related and consistent with business necessity,” then the fact that it was adopted in compliance with a state or local law does not shield the employer from Title VII liability.

With regard to New York State law on this issue, which applies to most public and private sector employers with at least 10 employees, we have attached our October 31, 2008 memorandum concerning an employer’s use of criminal conviction history. In brief, employers may not hire an applicant or implement an adverse employment action because of an individual’s previous conviction of one or more criminal offenses, or because the employer decides that the individual lacks “good moral character” due to prior criminal convictions, unless: (1) there is a direct relationship between one or more previous criminal offenses and the employment sought or held; or (2) hiring or continuing the individual’s employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. Employers must consider the factors set forth in our October 31, 2008 memorandum.

Regarding arrests, the applicable New York State law, which applies to most public and private sector employers with at least four employees, makes it an unlawful discriminatory practice to inquire about or to take an adverse action against an individual based on an arrest or criminal investigation which is no longer pending and which was terminated in the individual’s favor, unless the inquiry or action is required by law.

It may be helpful to consult with counsel to ensure compliance with both state and federal law.

What Employers Should Do

Review existing policies or practices concerning criminal background checks and eliminate those that exclude individuals from employment simply because they have a criminal record.

  • Document the justifications for any policy or procedure that excludes applicants due to specific criminal convictions.
  • When asking applicants or employees about their criminal records, only inquire about convictions or currently pending arrests that are related to the position at issue.

If you have any questions regarding your use of criminal history in employment decisions or collective bargaining issues concerning these decisions, please do not hesitate to contact us.


© Lamb & Barnosky, LLP, 2012

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