In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance (Guidance) on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 report, as amended (Title VII). Construction owners need to review this guidance and potentially revise their current policies and procedures regarding criminal background checks.
History of Title VII
According to one survey, 90 percent of employers perform criminal background checks on job applicants. The risk management reasons asserted for reviewing criminal background information are to prevent theft, fraud and workplace violence and to avoid liability for negligent hiring. Construction employers may also be required to perform background checks to comply with owner or general contractor requirements or state and local laws and regulations.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin. Having a criminal record is not specifically listed as a protected basis characteristic. Therefore, whether an employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of discrimination based on one of the protected categories. Title VII liability can arise from one of two types of liability: “disparate treatment” or “disparate impact.”
Disparate treatment occurs when an employer treats a person in a protected category differently from someone who is not in that category. On the other hand, disparate impact liability arises when an employer maintains an apparently neutral policy or practice that has the effect of disproportionately screening out a group protected by Title VII. This becomes an issue if the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity. To maintain a successful program of conducting criminal background checks, an employer must avoid policies or practices that might be considered a violation of Title VII under either of these two legal theories.
Over the past 25 years, courts and the EEOC have provided guidelines on employer use of criminal background employment decisions under Title VII. The EEOC’s recent Guidance restates the Commission’s position and supersedes its previous policy statements on this issue. Here are some guidelines to make sure your business stays in compliance:
Comply with the law. Along with guidelines regarding disparate treatment or disparate impact, a growing number of state laws also impose restrictions or prohibitions on the use of criminal background checks specifically. The most aggressive of these laws are called “ban the box” laws and prohibit employers from asking about potential employees’ conviction records. Such laws have been adopted in California, Connecticut, Hawaii, Massachusetts and New Mexico and in cities such as Chicago, Philadelphia and Seattle.
On the other hand, some states require thorough background checks. For example, existence of a criminal record may result in the denial of a federal security clearance, which is a prerequisite for a variety of positions with the federal government and federal contractors. Similarly, port workers can be denied transportation worker identification credentials based on their conviction records. State and federal laws can come into play in a variety of ways, and construction employers need to be aware of laws that apply to their businesses.
Do not use a blanket “any conviction” standard. The EEOC’s position is that a blanket policy denying employment to all applicants with criminal conviction records violates Title VII. That said, the EEOC recommends that employers utilize a targeted screening process that takes into consideration the position for which the applicant has applied, the nature and gravity of the criminal offense and the time that has passed since the offense or completion of the sentence.
Revise the inquiries on your employment application. The Guidance strongly discourages employers from asking about criminal convictions on job applications. However, most employers are still going to find it beneficial to inquire about these convictions. If a company chooses to inquire about conviction records, it should include a disclaimer along the lines of “Answering ‘yes’ to any of the following questions does not constitute an automatic bar to employment. Among other things, we will consider the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence and the nature of the job you are seeking. If you answer ‘yes’ to any of the following questions, be sure to fill in the explanation field.”
Do not consider arrest record. Simply put, employers may not exclude an applicant based solely on an arrest record. An arrest, unlike a conviction, does not establish that the alleged conduct occurred. Moreover, the EEOC’s position is that African Americans and Hispanics are arrested at a rate that is two to three times their proportion to the general population. Thus, considering arrest records during the hiring process would have a disparate impact on the categories protected by Title VII.
Assess each person’s individual situation. The EEOC suggests in the Guidance that employers be required to conduct an “individualized assessment” before disqualifying any applicant based on criminal history. The EEOC suggests that employers consider evaluating individualized information including, but not limited to, the following:
• The facts or circumstances surrounding the offense or conduct
• The number of offenses for which the individual has been convicted
• Age at the time of conviction or release from prison
• Evidence that the individual performed the same type of work, post-conviction, with the same or different employer with no known incidents of criminal conduct
• The length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, employment or character references and any other information regarding fitness for the positions in question
• The individual’s status (or lack thereof) under federal, state or local bonding programs
If an applicant does not respond to the employer’s attempt to gather additional information about the background, the employer may make an employment decision without that information.
Develop a written policy for conducting criminal background checks. The EEOC recommends developing a narrowly tailored, written policy and procedure for screening applicants and employees for criminal conduct. This policy should include the following components, among others:
• Identification of central job requirements and the circumstances under which the job is performed
• Statement of specific offenses that may demonstrate unfitness for performing such a job
• Establishing of the duration of exclusions for criminal conduct based on available evidence
• Explanation of a justification for the policy and the procedures
Keep criminal background information confidential. Employers that obtain background information on applicants and employees must keep that information confidential and should provide training to managers and decision-makers regarding the appropriate use of such information.
The EEOC’s new Guidance forces construction employers to maintain a precise balance of caution and compliance. While the use of criminal background checks can be an effective risk management tool, they must be conducted carefully.