A Trip Through Time: Since its first pronouncement on the topic in 1972, the EEOC has taken the position that policies prohibiting hiring persons with a criminal record may disparately impact certain minorities in violation of Title VII. To defend against disparate impact claims, an employer must demonstrate that the use of conviction records is job-related and consistent with business necessity. According to the EEOC, to make this showing, an employer must consider: (i) the nature and gravity of the offense(s), (ii) the time since conviction or sentence completion, and (iii) the nature of the job, before refusing to hire the applicant. Following a 1975 court decision, the EEOC has consistently analyzed these factors using a “common sense” approach.
A Wrinkle In Time: The EEOC announced its E-RACE Initiative in February 2007, incorporating its position on the use of criminal convictions in the hiring process. Two weeks later, the Third Circuit Court of Appeals in El v. Southeastern Pennsylvania Transportation Authority (SEPTA) threw employers and the EEOC a curve ball. Among other things, the court rejected the EEOC’s long-standing common sense approach, requiring instead that employers provide “some level of empirical proof” demonstrating that the use of criminal convictions accurately predicts job performance. The court, however, refused to go so far as to prohibit all bright-line policies like SEPTA’s (which excluded hiring drivers with any record of a felony conviction for violence against a person) if the policy actually distinguishes between applicants who pose an unacceptable risk and those who do not. The translation — employers should be prepared to present expert testimony if the plaintiff makes an initial showing of disparate impact. SEPTA presented several experts, including a leading criminologist in defense of its policy.
Full Speed Ahead: The SEPTA decision has generated new interest in the topic at the EEOC (despite the agency’s recent loss in EEOC v. Peoplemark in which it was ordered to pay over $750,000.00 in attorney’s fees because it was unable to secure the necessary expert testimony). It is unclear whether the EEOC will revise its policy guidance to incorporate SEPTA (or other changes), but in recent opinion letters and public meetings, the EEOC has demonstrated an increasing level of distrust of anything but the most narrowly tailored policies, indicating changes to current guidance may not be too far away. At a recent public meeting in July 2011, the Commissioners heard a wide range of testimony on the topic. For example, one witness advocated for adoption of a presumption that any criminal conviction policy has a disparate impact and another questioned the quality of the data employers are relying upon in light of the explosion of on-line background check services. These are just some of the issues the EEOC is grappling with in addition to SEPTA.
The Bottom Line For Employers:
A pre-employment question asking about criminal history does not in and of itself violate Title VII, but be very careful how such information is used and be very wary of broad-based or blanket exclusion policies. It is uncertain whether the EEOC and other courts will adopt the SEPTA holding, however, employers should do some end of year housekeeping and consider conducting a privileged review of their existing policies and procedures concerning criminal convictions, paying special attention to the scope and impact of such policies and reviewing for compliance with state laws on criminal background and credit reporting.