EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII/Conviction Records/Federal Banking Regulations
May 28, 2015
This is in response to your February 23, 2015, letter to Rosemary Fox, Director of the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) Milwaukee Area Office, regarding the Commission’s 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, 42 U.S.C. § 2000eet seq (“the Guidance” or “the Enforcement Guidance”), and your concern that FDIC regulations governing an insured depository institution’s employment of individuals with past criminal convictions may conflict with the Guidance. The EEOC welcomes your feedback and the opportunity to respond to your concerns.
Your letter expresses concern that Section 19 of the Federal Deposit Insurance Act (“Section 19”)(1) conflicts with Title VII based on your understanding that the employment screening process set forth in that regulation disproportionately excludes Black applicants and employees without a required showing that such exclusions are job related and consistent with business necessity.
As you know, the EEOC enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), which prohibits employment discrimination based on race, color, sex, religion, and national origin. Title VII does not prevent employers, including private institutions subject to Section 19, from using criminal background checks, as long as they do so without discriminating on the basis of race, national origin, or another legally-protected characteristic.
For several years before the Commission’s April 25, 2012 vote to approve the Enforcement Guidance, the EEOC received input and feedback from stakeholders on the issue of the consideration of arrest and conviction records in employment decisions. Moreover, before and after the approval of the Enforcement Guidance, EEOC staff has communicated with staff in other federal agencies regarding the Guidance and those agencies’ policies and practices relating to the consideration of criminal records in employment decisions. In fact, our records reflect that EEOC staff communicated directly with FDIC staff about Section 19, in particular. In addition, the Enforcement Guidance specifically refers to Section 19 as an example of federal regulations that provide a mechanism for an employer to apply for a waiver of a federally-imposed occupational restriction. See Enforcement Guidance, at § VI.C. Further, as you know, just months after the Commission approved the Guidance, the FDIC revised its policies relating to Section 19 by, among other things, expanding the types of de minimis offenses for which the FDIC grants automatic consent for an individual to, inter alia, work in “an insured depository institution” (e.g., a bank). See FDIC Statement of Policy for Section 19 of the FDI Act (amended December 11, 2012) (“FDIC Policy”).(2) Before the December 2012 revisions, an application for waiver was required if the individual’s criminal record included an offense “punishable by imprisonment for a term of one year or less and/or a fine of $1,000 or less, and the individual did not serve time in jail...” (emphasis added). The December 2012 revisions provide for automatic FDIC approval if the offense was “punishable by imprisonment for a term of one year or less and/or a fine of $2,500 or less, and the individual served three (3) days or less of actual jail time.” FDIC Policy, § B (5) (emphasis added). We understand that your litigation on behalf of Richard Eggers has been credited with prompting the December 2012 changes to the FDIC Policy.(3)
The EEOC cannot in an informal discussion letter such as this one interpret the regulations of another federal agency. However, we understand that you have been in direct discussions with FDIC staff about the FDIC’s perspective on the issues you raise. We also understand that the issues you raise in your letter are the subject of a lawsuit that you have brought on behalf of Wells Fargo employees who allege they were terminated because of their criminal conviction records in violation of Title VII.(4) While we cannot comment on the specific legal theories you advance in your letter and in the pending litigation, we can reiterate the Commission’s belief that the Enforcement Guidance strikes the right balance between legitimate workplace safety issues and the imperative to eliminate discriminatory employment practices.
Thank you for thoughtful consideration of these issues. Please note that this letter is an informal discussion of the issues you raised and should not be considered an official opinion of the EEOC. If you have further questions about this matter, feel free to contact me or Attorney Advisor Muslima Lewis by calling the Office of Legal Counsel at (202) 663-4640.
s/Carol R. Miaskoff
Assistant Legal Counsel
cc: Rosemary Fox, Esq.
1 12 U.S.C. §1829(a)(1)
3 Victor Epstein, FDIC quietly changes rule that cost thousands their jobs, USA Today, July 25, 2013, http://www.usatoday.com/story/news/nation/2013/07/25/fdic-quietly-changes-rule-that-cost-thousands-their-jobs/2588311/ (last visited on May 13, 2015)
4 Grant Rodgers, Lawsuit: Wells Fargo fired blacks over old convictions, The Des Moines Register, April 19, 2015, http://www.desmoinesregister.com/story/news/crime-and-courts/2015/04/19/wells-fargo-discrimination-lawsuit/26045269/ (last visited on May 13, 2015)
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