Last week, the EEOC issued an “updated” Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII .  The guidance takes the place of the Commission’s 1987 and 1990 policy statements, and was precipitated by a 2007 federal court decision that criticized the EEOC’s past guidance.

While the Commission uses the same general standards that have been in place for evaluating whether a conviction should be a bar to employment, it interprets those  standards in a way which makes it more difficult for employers to defend against any adverse employment action based on a employee’s criminal conviction.  As reported by The Daily Record, the take away message for employers is this:

Employers beware: Your prohibition on hiring job applicants with arrest or conviction records could land you in trouble with the U.S. Equal Employment Opportunity Commission.

Consistent with its past position, the EEOC emphasizes that employers must consider (1) the nature of the crime, (2) the time elapsed, and (3) the nature of the job.  The new guidance, however, suggests that employers should conduct an “individualized assessment” with regard to each applicant to determine if the policy as applied is job related and consistent with business necessity.  In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:

 “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.”

This individualized assessment will no doubt cause headaches for employers.  Indeed, the Commission suggests that employers must review multiple factors for each applicant, including:

  •  The facts or circumstances surrounding the offense or conduct.
  •  The number of offenses for which the individual was convicted.
  •  Older age at the time of conviction, or release from prison.
  •  Evidence that the individual performed the same type of work, post-cnviction, with the same or a 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 (e.g., education/training).
  • Employment or character references and any other information regarding fitness for the particular position.
  • Whether the individual is bonded under a federal, state, or local bonding program.

Clearly, this could become an onerous process for employers, especially those employers with large applicant pools.  Moreover, applicants and employees may be unwilling to share such information with prospective employers.  Notably, however, the guidance does state that if the individual does not respond to the employer’s attempt to gather additional information about his background, the employer is free to make a decision without such information.

The bottom line is that the Commission’s claim that the updated rules do not reflect a substantive change in its enforcement policy or the guidelines it expects the courts to apply is disingenuous.   The standards the Commission has published will, if deferred to by the courts, make it more difficult for employers to sustain the rejection of an applicant because of a conviction record.