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 and, concomitantly, a major increase in the number of people with criminal records in the working-age population. In 1991, only 1.8% of the adult population had served time in prison. . . . By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail. The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.
Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.
EEOC cites problems such as inaccuracies, obtaining expunged records, that an arrest doesn’t mean guilt, and other severe problems that arise with the use of criminal records for employment decisions, yet they say 92% of all employers are using criminal background checks on some or all employees.
Here are just some of the ways using criminal records might constitute illegal discrimination:
Disparate treatment: If two people with similar criminal backgrounds apply for the same job and one is not interviewed, or is not hired, then EEOC can look at the race and national origin of the two applicants. If the employer is giving whites the benefit of the doubt but excluding blacks or Hispanics, as an example, this would be disparate treatment. If you are excluded from a job or terminated due to a criminal background, look around. If others of a different race or national origin with similar histories are hired or still employed, you might have a discrimination case.
Disparate impact: If the employer excludes everyone with a criminal background, that doesn’t mean they escape liability for discrimination. Because of the huge disparities among races in criminal records, even a decision that seems racially neutral might have an illegal impact. EEOC cites to Title VII, which says, “An unlawful employment practice based on disparate impact is established . . . if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. . . .”
Arrest records: Because an arrest does not mean you’re guilty, use of an arrest record standing alone may not be used to deny an employment opportunity. However, the employer may make an inquiry as to whether the underlying conduct involved makes you unfit for employment. The EEOC gives, as an example, a principal who is arrested for sexual misconduct involving a minor. The employer may suspend him pending an investigation and interview witnesses and examine evidence to determine whether the evidence supports the charge. Because the conduct relates to his fitness to perform his duty, the employer may determine his version of events is not credible and terminate him. What the employer can’t do is consider any arrest as evidence of untrustworthiness and fire all employees arrested for any reason.
Convictions: Convictions are certainly evidence that you were guilty of a crime. However, EEOC requires that any inquiry about convictions be limited to “convictions for which exclusion would be job related for the position in question and consistent with business necessity.” In general, the factors the employer should consider are the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct and/or completion of the sentence; and the nature of the job held or sought (called the Green factors). EEOC says the employer may use criminal convictions if:
a. “The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible);” or
b. “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.”
Individualized assessment: In order to meet the second test for using convictions, the employer must give an opportunity for an individualized assessment of people excluded by the screen. the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity. This means they have to tell you that you may be excluded because of past criminal conduct, give you an opportunity to show the exclusion doesn’t properly apply to you, and then consider whether your additional information shows that excluding you would not be job related and consistent with business necessity.
Relevant information: Once the employer contacts you, some information they should consider if you present it are the facts and circumstances surrounding the offense, the number of convictions, older age either at the time of conviction or release from prison, evidence that you’ve performed the same type of work post-conviction with similar or the same employer with no additional criminal conduct, the length of your employment history before and after the offense, rehabilitation efforts such as education and training, character and other evidence regarding fitness for the particular position, and whether you are bonded. If you don’t respond, the employer can make its decision with the information it has. That means you should respond quickly and completely if you want a chance at the job.
Less discriminatory alternative: Even if the employer can show a business necessity and that excluding you because of your record may be job related, you might still be able to prove discrimination if you can show a less discriminatory alternative to the exclusion that serves the employer’s goals equally well.
Industries with restrictions: If the industry you’re applying for prohibits hiring or retaining employees with certain criminal convictions, then the employer may comply with the law, but if they impose any stricter exclusion they are still subject to potential discrimination claims.
Best Practices For Employers
EEOC’s recommendations are that employers review their practices to make sure they aren’t engaging in illegal discrimination. They suggest the following best practices for employers:
- Eliminate policies or practices that exclude people from employment based on any criminal record. • Train managers, hiring officials, and decisionmakers 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 decisionmakers 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.