Can A Potential Employer Ask About Your Criminal Record?

Good jobs can be hard to find. If you have a criminal record that can make it even more difficult to find a decent job. In 2012 the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance Memo that recognized that in the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system resulting in a major increase in the number of people with criminal records in the working-age population. They further recognized that arrest and incarceration rates were particularly high for African American and Hispanic men. The EEOC looked at potential Employers’ use of Arrest Records and Conviction Records in the hiring context and how these records can impact an individual’s civil rights.

The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are dismissed. Even if an individual is charged and subsequently prosecuted, he is presumed innocent unless proven guilty. However, arrests may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII of the Civil Rights Act calls for a fact-based analysis to determine if an exclusionary policy or practice is job related and consistent with business necessity. Therefore, the EEOC concluded, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.

The EEOC also looked at records of convictions. By contrast, a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas. However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction. For example, a database may continue to report a conviction that was later expunged, or may continue to report as a felony an offense that was subsequently downgraded to a misdemeanor. The EEOC recognized that some states require employers to wait until late in the selection process to ask about convictions. The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience. Consequently, the EEOC recommended as a “best practice”, that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity. In line with that finding the EEOC issued the following recommendations for Employers:

Eliminate policies or practices that exclude people from employment based on any criminal record.
Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

Identify essential job requirements and the actual circumstances under which the jobs are performed.
Determine the specific offenses that may demonstrate unfitness for performing such jobs.
Identify the criminal offenses based on all available evidence.
Determine the duration of exclusions for criminal conduct based on all available evidence.
Include an individualized assessment.
Record the justification for the policy and procedures.
Note and keep a record of consultations and research considered in crafting the policy and procedures.
Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

While the EEOC has recommended these practices as “best practices” they are not yet codified as law. However, if you believe that that you have been turned down for a job because of a prior criminal record that is unrelated to the position you are seeking, you may want to consider filing a complaint with the EEOC www.eeoc.gov and/or the Pennsylvania Human Relations Commission www.phrc.pa.gov if you are a Pennsylvania resident.

Today issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended (Title VII). The Commission today voted 4-1 to approve the guidance document. The Commission also issued a Question-and-Answer (Q&A) document about the guidance. The Enforcement Guidance and Q&A document will be available on the EEOC’s website at www.eeoc.gov.

“When the Commission met publicly to discuss this subject in July, 2011, I said that I hoped the meeting would help to inform the Commission’s consideration of revisions to existing EEOC guidance. We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” said EEOC Chair Jacqueline A. Berrien. Chair Berrien added, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago. The Commission originally issued three separate policy documents in February and July 1987 under Chair Clarence Thomas and in September 1990 under Chair Evan Kemp explaining when the use of arrest and conviction records in employment decisions may violate Title VII. The Commission also held public meetings on the subject in 2008 and 2011. The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee. Among other topics, the guidance discusses:

How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
Federal court decisions analyzing Title VII as applied to criminal record exclusions;
The differences between the treatment of arrest records and conviction records;
The applicability of disparate treatment and disparate impact analysis under Title VII;
Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
Best practices for employers.