OFFICE OF LEGAL COUNSEL TESTIMONY ON ARRESTS AND CONVICTIONS

Good morning Madam Chair and Commissioners. I am Tanisha Wilburn, Acting Assistant Legal Counsel in the Office of Legal Counsel. Assistant Legal Counsel Carol Miaskoff and I will summarize the proposed Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended.

The Enforcement Guidance before you consolidates and supersedes the Commission’s policy statements from 1987 and 1990 on this issue, as well as the short discussion in Section VI.B.2 of the Commission’s 2006 Race & Color Discrimination Compliance Manual Section. As such, this proposed Guidance would represent the Commission’s first major statement on this important topic in over 20 years. At the same time, the Guidance largely reasserts fundamental legal positions the Commission staked out over 20 years ago, providing more in depth legal analysis and updated factual research.

BACKGROUND

The proposed Enforcement Guidance begins by setting forth the reasons why this update is timely.

In the last 20 years, technology has changed not only the way people apply for jobs, but also the way employers screen people for jobs. The review of criminal records is often part of that screening process. There are now many online sources for obtaining criminal history information about applicants and employees. Commercial services have developed private databases of criminal records from which they provide criminal history information to employers for a fee, subject to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

In a 2010 survey conducted by the Society for Human Resources Management, a total of 92% of the responding employers reported that they subjected some or all of their job applicants to criminal background checks. Generally, employers have cited legal requirements as well as concern about negligent hiring liability, theft and workplace violence as reasons for using criminal background checks.

There also has been an increase in the proportion of Americans who have had contact with the criminal justice system in the last 20 years.

• In 1991, 1.8% of the adult American population had served time in prison.
• By 2007, 3.2% of all adults in the American population were under some form of correctional control involving probation, parole, prison, or jail.
• If incarceration rates do not decrease, the Department of Justice has projected that approximately 6.6% of all people born in the United States in 2001 will serve time in state or federal prison during their lifetimes.

Arrest and incarceration rates continue to be disproportionately high for African American and Hispanic men.

• African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.
• Assuming that current incarceration rates remain unchanged:
  • approximately 1 in 17 White men is expected to serve time in prison during his lifetime;
  • approximately 1 in 6 Hispanic men is expected to do so, and
  • approximately 1 in 3 African American men is expected to be incarcerated in his lifetime.

Finally, there is a need for more legal guidance on this topic under Title VII.

• All three EEOC policy documents on this topic predated the Civil Rights Act of 1991. That Act codified disparate impact analysis, which is often used to challenge criminal record screens as discriminatory under Title VII.
• The Commission’s February 1987 Conviction Records policy statement, and its 2006 Compliance Manual on Race and Color Discrimination, were the only EEOC documents to include discussions of disparate treatment discrimination and the use of criminal records. Thus, this topic merited more attention.
• Finally, in its 2007 El v. Southeastern Pennsylvania Transportation Authority decision,¹ the Third Circuit Court of Appeals noted that the Commission’s 1987 and 1990 policy statements did not provide sufficient legal analysis and factual research.

This proposed Enforcement Guidance is intended to respond to these concerns.

PROCESS

To ensure that it considered the latest research and diverse perspectives on this issue, the Commission held public meetings in 2008 and 2011 on the use of criminal records in employment decisions. Panelists at both meetings submitted detailed written statements, which staff analyzed, and the Chair and Commissioners questioned the panelists during the meetings.

The Commission also invited interested parties to provide feedback and written comments after the July 2011 meeting. As a result, the Commission received and reviewed approximately 300 written comments. Prominent business and civil rights groups were well represented, in addition to many individuals.

THE PROPOSED ENFORCEMENT GUIDANCE

We will now summarize the proposed Enforcement Guidance. This document reaffirms the Commission’s fundamental Title VII policy positions on this topic and provides significantly more in-depth legal analysis and factual research.

First, like the earlier documents, the proposed Enforcement Guidance focuses on criminal record screening and employment discrimination based on race and national origin.

Second, the proposed Enforcement Guidance discusses the differences between the treatment of arrest and conviction records.

• The fact of an arrest does not establish that criminal conduct has occurred. Therefore, an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
• By contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The main discussion in the proposed Enforcement Guidance concerns disparate treatment and disparate impact analysis.

Under disparate treatment analysis, a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. For example, there would be Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record. There are several kinds of evidence that may be used to establish that race, national origin, or another protected basis, motivated how an employer used information about criminal records in its selection decisions. These include:

• Biased statements;
• Inconsistencies in the hiring process; and
• Comparisons with similarly situated applicants and employees.

[I will now turn the presentation over to my colleague, Carol Miaskoff, Assistant Legal Counsel for Title VII/ADEA/EPA.]

I will summarize what the proposed Enforcement Guidance says about disparate impact analysis. A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. The discussion in the proposed Enforcement Guidance is organized according to the elements of the disparate impact case.

The first step is to identify the particular policy or practice that causes the unlawful disparate impact. For criminal record exclusions, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. More specifically, information also includes which offenses or classes of offenses were reported to the employer (for example, all felonies, all drug offenses); whether convictions (including sealed and/or expunged convictions), arrests, charges, or other criminal incidents were reported; how far back in time the reports reached (for example, the last five, ten, or twenty years); and the jobs for which the criminal background screening was conducted.

The next step is determining disparate impact. Here, the Enforcement Guidance provides more detail than the 1987 and 1990 policy statements, but sets forth the same policy positions:

• The proposed Enforcement Guidance recounts national criminal data for African Americans and Hispanics in detail. The national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. It also provides a basis for the Commission to further investigate Title VII disparate impact charges challenging criminal record exclusions.
• As before, the employer has an opportunity during the investigation to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).
• The Commission assesses all relevant evidence when making a determination of disparate impact.

After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of production and persuasion to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” The proposed Enforcement Guidance analyzes the legal genesis of this standard in Supreme Court cases and federal appellate decisions involving criminal records exclusions.

• The Eighth Circuit, in its 1977 Green v. Missouri Pacific Railroad decision, identified three factors for assessing whether a criminal record exclusion is job related and consistent with business necessity:
  • The nature and severity of the offense;
  • The amount of time elapsed since the offense or completion of the sentence; and
  • The nature of the job held or sought.
• In 2007, the Third Circuit, in El v. Southeastern Pennsylvania Transportation Authority, analyzed the Supreme Court precedent and emphasized the importance of careful factual analysis for criminal record exclusions. The Third Circuit observed that hiring involves assessing risks, and commented that criminal record exclusions need to “accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.”

Based on the judicial precedents, the proposed Guidance states that there are two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” standard:

First, the employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or

Second, the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.

Finally, although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.

• To provide more guidance about the second circumstance, the proposed Enforcement Guidance provides a detailed discussion of the three Green factors.
• • The nature and gravity of the criminal offense
    • The harm caused;
    • The elements of the crime; and
    • Whether it is a misdemeanor or felony.
  • The time that has passed since the criminal offense or completion of the sentence. Criminal record exclusions should specify the duration of the exclusion. The exclusion should not be unlimited. This determination should be fact-based. For example, it could be based on a study or on a federal statutory exclusion.
  • The nature of the job held or sought. It is important to carefully assess the job duties and functions, in actual practice, to develop a narrowly-tailored criminal record exclusion. Employers can consider the level of supervision, the amount of interaction with co-workers or customers, and the amount of access to vulnerable individuals, like children.

  The proposed Enforcement Guidance then explains individualized assessment. 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. Other relevant individualized evidence includes, for example:

  • 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-conviction, 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; and
  • Whether the individual is bonded under a federal, state or local bonding program.
• The proposed Enforcement Guidance provides numerous examples of policies under the job related and consistent with business necessity analysis.
• Finally, with respect to disparate impact analysis, the proposed Enforcement Guidance explains that, even if an employer successfully demonstrates that its policy or practice is job related and consistent with business necessity, a plaintiff can still prevail if he demonstrates that a less discriminatory, but effective employment policy or practice was available, but the employer refused to adopt it.

Employment Subject to Other Federal Laws and Regulations

The proposed Enforcement Guidance recognizes that, in certain industries, employers are subject to various federal laws or regulations that restrict or prohibit the employment or licensing/registration of individuals with certain convictions. Compliance with a federal law or regulation is a defense to Title VII liability. However, employers will be subject to Title VII liability if their policies or practices go beyond the mandates of such federal requirements, in a way that violates Title VII.

Finally, with respect to other federal government matters, the proposed Enforcement Guidance discusses how Title VII applies these same disparate treatment and disparate impact principles to the federal government as an employer.

Employment Subject to State and Local Laws or Regulations

Unlike federal laws or regulations, state and local laws or regulations are preempted by Title VII if they “purport [] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII disparate impact liability.

The Guidance concludes with some best practices for employers.

Thank you for this opportunity to work on, and to present, this proposed Enforcement Guidance for your consideration today.

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Footnote

¹ 479 F.3d 232 (3d Cir. 2007).