Practice Areas

Employers Must Consider the EEOC Guidelines Regarding the Use of Arrest and Conviction Records in Employment Decisions or Risk a Charge of Discrimination

By Brian F. Lange, Esq.

The United States Equal Employment Opportunity Commission (EEOC) recently published guidelines with respect to the use of arrest and conviction records in making employment decisions. (EEOC Enforcement Guideline Number 915.002). The EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e, et seq. The EEOC's Guidelines are based on prior EEOC policy documents and court decisions over the last twenty (20) years.

Criminal history information has become much more accessible over the past ten (10) years allowing employers to easily obtain job applicants' criminal records. Due to the ease of access to this information, an increasing number of employers are likely to consider criminal arrests and convictions when making employment decisions. Although criminal convictions may lawfully be considered in making employment decisions, employers must follow certain guidelines or risk discrimination charges from the EEOC.

In determining whether an employer has discriminated against a potential employee under Title VII of the Civil Rights Act, one of the aspects the EEOC will consider is whether an employer's policy creates a "disparate impact." A potential employee can show "disparate impact" by demonstrating that an employer's policies or procedures resulted in a disproportionate number of Title VII-protected individuals being eliminated from consideration for a position. An employer can defend against a claim by showing that the employer's policy or practice in question was job related to the position and consistent with business necessity.

The EEOC Guidelines set forth three factors to be considered by an employer in drafting a policy or practice that will result in exclusion of potential employees based on their criminal records. Specifically, the following factors are relevant in determining whether criminal records exclusion is job related for the position in question and consistent with business necessity:

1) The nature and gravity of the offense or conduct;

2) The time that has passed since the offense or conduct and/or completion of the sentence; and

3) The nature of the job held or sought.

Accordingly, an employer hoping to ward off potential discrimination charges from the EEOC may wish to consider these three factors in the employer's criminal records exclusion policy.

It is also important to note that an arrest record is not proof of criminal conduct and does not serve as a sufficient basis to exclude a person from employment. An arrest record may lead to an inquiry by the employer into the current or potential employee's actions, but the record itself cannot serve as the basis for an adverse employment action (EEOC Enforcement Guideline Number 915.002).

The EEOC Guidelines additionally set forth what amounts to a "Best Practices" policy to ward off any potential claim for discrimination. These Best Practices include the use of the three factors set forth above to screen applicants and for an individualized assessment of each potential employee excluded under the criminal records policy. The individualized assessment requires that an employer notify potential employees if they are to be excluded based on their criminal records and allow the employees to respond to the exclusion with an explanation of their past conduct. Actions consistent with these Best Practices will not result in a finding of discrimination by the EEOC. (EEOC Enforcement Guideline Number 915.002).

Notwithstanding the EEOC Guidelines, it is important to note that Ohio requires individuals with certain criminal convictions be excluded from employment for positions involving contact with children, elderly individuals and individuals with certain disabilities. R.C. 3301.32; R.C. 3712.09; R.C. 5126.28. With that said, to the extent that a potential employee is not specifically excluded by statute, employers would be wise to consider the EEOC Guidelines before making any adverse employment decisions based on criminal records.