How does Title VII of the Civil Rights Act of 1964 (“Title VII”), the federal anti-discrimination law, affect companies seeking to monitor current employees or job applicants, when it comes to criminal history searches, i.e., criminal convictions and arrest records? What are the responsibilities of the company and the risks they face if they don’t meet them?

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued revised guidelines on how arrest and conviction records may be properly utilized in the employment context. The newly issued guidelines provide practical tips that both applicants and employers can put to use immediately. Some of the highlights that may help employers avoid discrimination lawsuits include the following five points.

Cleaning House

Oftentimes new management will come in and conduct either systematic or random background checks on employees, regardless of job position. If criminal records appear and employees are treated differently because of the results, this can have a disproportionate effect on certain minority workers at a company.

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Therefore, if a background investigation is done, such investigation must be reasonably related to the job duties of the individual in the position. A civil rights problem could ensue if new management conducts background checks on current employees, learns of an employee’s criminal record and terminates such employee, when that employee had no previous job-related misconduct, safety or performance issues, warranting the termination.

Online Screening

Employment applications online that automatically exclude a candidate with a criminal history may be discriminatory, potentially violating Title VII and various state anti-discrimination laws, as they have been shown to have an adverse and disproportionate impact on individuals based on race and national origin.

In this situation, an employee would be excluded and “dead in the water” based on the results. Additionally, so could the employer if the policy and practice of conducting searches is not narrowly tailored to the job duties.

Business Necessity

Individual characteristics of the applicant should be taken into account rather than general prohibitions based on criminal history. Although there is no absolute safe harbor, there are three “business necessity” factors that should be considered by an employer when encountering an applicant’s criminal record:

a)      the nature of the crime

b)      the age of the offense

c)       the relationship of the offense to the actual job duties

Arrest and Conviction Distinction

The guidance distinguishes between an arrest and conviction. The fact that an individual was arrested does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in and of itself, is not job related and not consistent with business necessity as described above.

However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. Rather than an across-the-board exclusion, this targeted screening and individualized assessment will provide an employer with a stronger defense to a discrimination lawsuit.

Employer Protection

The guidance sets out a specific, practical procedure to aid employers in dealing with applicants with a criminal history:

1. employer notification to the applicant that s/he may be rejected based on his/her criminal record
2. an opportunity for an applicant to respond
3. employer consideration of what the applicant has said in his/her own behalf

Working within this framework can prove to be productive and constructive on many levels for both the applicant and the potential employer.

Overall, the EEOC’s new guidance is a step in the right direction from an employee-rights as well as management-side perspective. The guidance provides for employers who have a need and legal obligation to shield themselves from a negligent hiring or retention suit as well as society’s counterbalancing need to allow workers who have made mistakes another chance to participate in the workforce, support their families and themselves.