The U.S. Equal Employment Opportunity Commission (EEOC) has submitted a draft proposal to the Office of Information and Regulatory Affairs (OIRA), part of the U.S. Office of Management and Budget, concerning the use of arrest and conviction records in employment decisions. If approved, the proposal appears likely to result in the withdrawal of the EEOC's previous guidance on the issue.

In 2012, the 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.

The guidance was intended to prevent employers from using criminal records in ways that could result in unlawful discrimination. Specifically, it addressed how employment decisions based on criminal history could lead to disparate treatment or have a disparate impact on certain racial and ethnic groups.

The guidance also distinguished between arrest records and convictions, emphasizing that an arrest does not establish that an individual committed a crime. As a result, employers were cautioned against relying solely on arrest records when making employment decisions.

The important factors for consideration of these records are:

• The nature and gravity of the offense
• The amount of time that has passed since the offense or completion of the sentence
• The nature of the position

The EEOC's guidance outlines nine factors employers should consider when conducting an individualized assessment of an applicant's or employee's criminal conviction history.

Over the past two years, the federal government has shifted away from prioritizing the enforcement of disparate impact regulations. However, this shift does not mean employers can disregard established practices or return to potentially discriminatory employment decisions.

Employers should keep the following in mind:

• Disparate impact claims remain actionable under both federal and state laws.
• The EEOC will continue to enforce disparate treatment cases involving intentional discrimination.
• Federal recordkeeping requirements remain in place. Employers must continue to retain required employment records, which may be used as evidence of intentional discrimination.
• Evidence previously used to support disparate impact claims may also help establish discriminatory intent. As enforcement priorities shift toward intentional discrimination, employers should remain mindful of how their employment practices and decisions could be interpreted.
• Employees and applicants may still pursue legal action. The EEOC can issue notices of right to sue, allowing individuals to pursue discrimination claims in federal court.

Employers must also remember that employment background checks are governed by the Fair Credit Reporting Act (FCRA). There are also various state and county laws regarding employment background checks. These are often stricter and require more processes and documentation regarding the use of criminal records for employment decisions than the FCRA requirements.

Rather than relaxing their policies if the EEOC's draft proposal is approved, employers should remember that applicants can still file discrimination claims and pursue legal action. The EEOC's 2012 guidance outlines practical, common-sense practices that employers would be wise to continue following to help ensure fair and consistent employment decisions and reduce the risk of discrimination claims.

It is surprising that more states, local governments, and employers have not adopted ban-the-box policies and individualized assessments when evaluating candidates' criminal histories. Beyond the legal risks, discriminatory hiring practices can cause employers to overlook qualified candidates who could bring valuable skills and experience to their organizations.

Source: Ogletree.com