! Last week, without public comment of proposed content, The EEOC approved, by a 4-1 vote, a revised Enforcement Guidance on the Consideration of

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2 ! Last week, without public comment of proposed content, The EEOC approved, by a 4-1 vote, a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964! The Guidance was effective immediately and issued over a strong dissent! The Guidance replaced a 1987 EEOC Policy Statement regarding Conviction Records and a 1990 Policy Guidance on the Consideration of Arrest Records 2

3 ! The Guidance advises employers on suggested actions to avoid disparate impact claims related to use of applicants criminal backgrounds! Requires review of practices but in this speaker s opinion does not restrict employer s rights to continue to make reasonable employment decisions 3

4 ! Arrests itself as opposed to underlying conduct should not be considered in making employment decisions no significant change guidance respects employer s right to make credibility determination! Convictions should be subject to individualized analysis and dialogue (that is already technically required under some state laws and was suggested to a lesser extent in the prior guidance) 4

5 ! Under Title VII, an employer may justify a practice that results in a disparate impact by demonstrating a business necessity for that practice. An employer can demonstrate business necessity under the 1987 Policy by showing it considered three factors in making its decision:! 1. The nature and gravity of the criminal offense(s); 2. The time that has passed since the conviction and/or completion of the sentence; and 3. The nature of the job held or sought. ( Green factors ) 5

6 ! Narrowly Targeted Screens May Satisfy Business Necessity - The Guidance contemplates that an employer may satisfy its Title VII obligations by using an internal policy if it is narrowly tailored. The Guidance explains narrowly tailored as a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. The Guidance refers to targeted screens that are based on the Green factors, i.e., the nature of the crime, the time elapsed and the nature of the job. - EXCEPTION, NOT RULE/BEST PRACTICE 6

7 ! Targeted Screens Accompanied by Individualized Assessment THE BEST PRACTICE - the Guidance clearly prefers that a targeted screen be accompanied by notice to the individual under scrutiny and an individualized assessment of the individual and the crime and the position in question. The Guidance lists eight possible topics of consideration in an individualized assessment, all of which generally require a dialogue: 7

8 ! The facts and circumstances surrounding the offense;! The number of offenses for which the individual was convicted;! Age at time of conviction or release from prison;! Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, without incidents of criminal conduct;! The length and consistency of employment history before and after the offense; 8

9 ! Rehabilitation;! Employment or character references and other information regarding the individual s fitness for the particular position; and! Whether the individual is bonded. If the individual does not respond to the employer s inquiries, the employer may make its decision without the information. 9

10 ! Validation Study May Satisfy Business Necessity - while the Guidance allows a validation study on an employer s use of criminal background information to establish business necessity, the EEOC appears doubtful that data exists to allow an employer to conduct such a validation study. 10

11 ! Federal disqualifier prevails and employers not even required to seek waivers! State or local disqualifiers do not what is an employer to do?! Suggested implementation of ban the box! Suggestion of claims for those discouraged from applying due to employer s reputation in community 11

12 ! The EEOC has taken the position that it can expand any individual charge into a systemic discrimination investigation! Big numbers are bad numbers and large numbers of applicants are likely to produce statistically significant adverse impact trends! When that occurs, employers will be required to utilize individualized assessment, targeted screens or conduct a validation study under the new EEOC Guidance to avoid liability 12

13 ! Not 100% clear but even if courts don t significant potential issues with EEOC before judiciary becomes involved! Courts sometimes bow to EEOC guidance Justice Scalia generally defers to EEOC! If guidelines, rejected, pure DI business necessity analysis applies difficult standard to meet 13

14 ! Review current policies! Limit per se disqualifiers and engage in appropriate analysis for any remaining per se disqualifiers! Be careful of automatic pre-adverse action letters and even ratings! Engage in individualized analysis and dialogue whenever possible! Train personnel with hiring responsibilities 14

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