Pub. 3 2012 Issue 4

www.wvbankers.org 12 On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (Guidance). B ecause many employers obtain information about criminal records as part their background checks, changes to their policies and practices may be warranted as a result of this development. Criminal background checks and Title VII The EEOC’s Guidance makes plain that an employer’s use of criminal records may, in some instances, violate Title VII, which applies to most employers with 15 or more employees. While Title VII prohibits employment discrimination based on race, color, religion, sex and national origin, the Guidance focuses primarily on race and national origin discrimination. Title VII does not protect individu- als with conviction records per se; however, individuals can experience discrimination under this statute based on their criminal records. The two theories giving rise to such liability oc- cur: (1) when employers treat criminal history differently for different appli- cants or employees based on their race or national origin (disparate treatment EEOC Issues Updated Guidance on Employer Use of Criminal Background Information By Mark H. Dellinger, Partner, Bowles Rice LLP theory); or (2) when an employer’s neutral background check practice or policy disproportionately impacts indi- viduals in protected classes (disparate impact theory), unless the practice or policy is job-related and consistent with business necessity. EEOC’s Guidance In its Guidance, the EEOC reiterates its longstanding position that an ar- rest, by itself, does not establish that criminal conduct occurred and is never job-related and consistent with busi- ness necessity. In contrast, a conviction typically serves as sufficient evidence that a person engaged in the particular conduct that led to the conviction. The EEOC identifies two situations where it believes employers will be able to demonstrate that a denial of employ- ment based on a criminal record is “job-related and consistent with busi- ness necessity:” (1) when the employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures; and (2) when the employer develops a targeted screening program that considers the nature and gravity of the offense or conduct, the time that has passed since the offense and completion of any sentence or pro- bation, and the nature of the job at issue. For any individuals who are screened out by this targeted screening process, the EEOC explains that the employer’s policy or practice should then provide an opportunity for an “individualized assessment,” which involves several fac- tors. While the EEOC does not actually require employers to conduct individual- ized assessments, its Guidance stresses that a screening process that does not include individualized assessments is more likely to violate Title VII. Best Practices The Guidance concludes with a num- ber of “best practices” that employers are encouraged to implement. While it is impossible to list all of those Q EEOC Issues — continued on page 16