Meeting of July 26, 2011 – EEOC to Examine Arrest and Conviction Records as a Hiring Barrier
Good morning Chair Berrien and Commissioners Ishimaru, Barker, Feldblum and Lipnic. Thank you for inviting me to appear before you today to discuss the employer perspective on various issues relating to criminal background checks in employment.
As you know, my name is Barry Hartstein, and I am a shareholder with the law firm of Littler Mendelson, which represents employers around the country in employment-related matters. I am indebted to various colleagues who have shared their thoughts with me, both inside and outside the firm, but I am speaking today on my own behalf and not on behalf of the firm or any client.
I have had the privilege of working in the employment law field since the mid-70’s and work with employers around the country, both small and large. I have worked closely with your colleagues in individual and pattern or practice investigations, mediation, conciliation and consent decrees and also have had the privilege of working in partnership with the EEOC at both the local and national level for many years, including serving as a liaison between the bar and the EEOC in Chicago and speaking at your Technical Assistance Programs to assist in EEO compliance.
I share this background with you because the topic of an individual’s criminal history in the employment setting is one that poses some of the greatest challenges I have witnessed in 35 years of practice.
There are many interests that need to be weighed in the balance in dealing with criminal history records, including criminal background checks in employment. There clearly is a public interest and important public policy of integrating ex-offenders into the workforce. From every study I have read, and perhaps even common sense, steady and gainful employment can help reduce recidivism. Having accurate information about an individual’s criminal history also is important because of its potential adverse consequences for both the individuals and prospective employers. Also weighing in the balance is the need to evaluate the risk of hiring someone with certain types of criminal records,1 which may pose a legitimate a concern in the interests of protecting employees, customers, vulnerable persons and a company’s business assets. Based on the world we now live in, separate and apart from a person’s suitability for certain jobs, issues of security and counterterrorism efforts also fall into the mix. Aside from these wide range of interests, we also have a whole host of laws and legal concerns dealing with these issues coming at us from many different directions.
My basic premise is that any discussion of an individual’s criminal history in the employment setting must be put in the proper context. It is multi-dimensional, ever changing, with no easy answers or any standard formula, such as “one size fits all.” If there is any other takeaway from my remarks, it is to commend the Commission for its leadership in seeking out various areas of expertise and hearing numerous points of view on this sensitive and complex issue as you try and help all of us build our skill base in this area. One final additional takeaway from today’s session is that regardless of the EEOC’s final decision on its approach to its guidelines on criminal history records, whether they are modified or stay the same, I am hopeful that the EEOC will engage in continued dialogue with its stakeholders, including those in the employer community, as the Commission tries to strike the proper balance in dealing with this sensitive issue.
The Early Years
When I first started advising employers in this area years ago, it didn’t seem too complicated. As an example, In the 1980’s I prepared a publication for employers on pre-employment inquiries in which I included the EEOC’s February 1983 guidelines on “Pre Employment Inquiries and Equal Employment Opportunity Law” as well as pre-employment guidelines published by every state in the country that prepared such guidance for employers.
What I learned very quickly was that employers should stay away from inquiring about arrests because of their potential negative impact on minorities and that some care should be taken with convictions to the extent of giving “fair consideration to the relationship between a conviction and the applicant’s fitness for a particular job.”
The EEOC’s pre-employment guidelines stated in pertinent part:
Because members of some minority groups are arrested substantially more often than whites in proportion to their numbers in the population, making personnel decisions on the basis of arrest records has a disproportionate effect on the employment opportunities of members of these groups. The courts and the Commission accordingly have held that without proof of business necessity an employer’s use of arrest records to disqualify job applicants is unlawful discrimination. Even if an employer does not consider arrest information, the mere request for such information tends to discourage minority applicants and will, therefore, be considered with suspicion by the Commission.
A conviction for a felony or misdemeanor may not by itself lawfully constitute an absolute bar to employment; however, an employer may give fair consideration to the relationship between a conviction and the applicant’s fitness for a particular job. Conviction records should be cause for rejection only if their number, nature and recentness would cause the applicant to be unsuitable for the position. If such inquiries are made, they should be accompanied by a statement that a conviction record will not necessarily be a bar to employment, and that factors such as age and time of the offense, seriousness and nature of the violation, and rehabilitation will be taken into account.
As shown above, the guidelines essentially included the simple guideline that an employer should include a statement that a conviction record will not necessarily be a bar to employment.
State pre-employment guidelines were similar and many included charts of permitted and prohibited inquiries.2 The State of Michigan was a good example of a typical approach regarding permitted and prohibited inquiries regarding an applicant’s criminal history:
|Subject||Lawful Pre-Employment Inquiries||Unlawful Pre-Employment Inquiries|
|Arrests||Have you ever been convicted of a crime?
Are there any felony charges pending against you?
|Inquiry regarding arrests which did not result in conviction (Except for law enforcement agencies)|
Some states, such as New York, were slightly more restrictive, but generally made a distinction in referring to inquiries on arrests as “unlawful” and inquiries on “convictions” as “lawful (but with certain caveats):
|Arrest Record||Have you ever been convicted of a crime? (Give details)*
*An applicant may not be denied employment because of a conviction record unless there is a direct relationship between the offense and the job or unless hiring would be an unreasonable risk. An ex-offender denied employment is entitled to a statement of the reasons for such denial. Correction Law, Article 23-A, §754.
|Have you ever been arrested?|
The standard application that I prepared in those years was not particularly difficult. No inquiries were made regarding arrests or convictions for misdemeanors,3 and the general inquiries on criminal history were as follows:
The application was slightly modified as various states created laws restricting inquiries involving records that were sealed, expunged or statutorily eradicated.
Moving Fast Forward - Current Restrictions Protecting Those With Criminal History Records
Today, private sector employers hiring across the country constantly have to monitor various state law restrictions. The state-level restrictions vary considerably and are by no means uniform. As an example, in some states there are a wide range of limitations, which include prohibiting employers from discriminating against ex-offenders in hiring unless they can demonstrate that the ex-offender’s conviction is job-related or that employing the ex-offender would pose an unacceptable risk of harm to others.4 In addition, in some states, even though the statute and regulations do not prohibit inquiring into criminal history, the state department of labor or other administrative agency may take the position that certain forms of criminal history inquiries should be avoided.5 In two jurisdictions, Hawaii and Massachusetts, as further described below, there are restrictions and/or prohibitions in asking applicants about criminal record information on an initial written application. The fair credit reporting statutes in some states also limit the scope and flow of information that “consumer reporting agencies” (i.e. background check companies) can report to employers, including conviction records, and these state laws must be read in tandem with the federal Fair Credit Reporting Act (“FCRA”). In some jurisdictions, the state laws may be more restrictive than the FCRA.6
The following state laws and legal provisions are illustrative of the various limitations placed on employers dealing with an applicant’s criminal history. The variations among these various jurisdictions clearly demonstrate the challenges faced by employers in addressing compliance-related issues in the pre-employment process involving an applicant’s criminal history:7
An employer may not ask for information concerning certain petty marijuana offenses after two years of the date of the conviction. Cal. Lab. Code §§ 432.7, 432.8. These marijuana offenses include convictions for violation of section 11357 (b) or (c) of the Health and Safety Code or a statutory predecessor thereof, section 11360(c) of the Health and Safety Code, or sections 11364, 11365, or 11550 of the Health and Safety Code as they related to marijuana prior to January 1, 1976, or a statutory predecessor thereof. Cal. Lab. Code § 432.8.
The California Department of Fair Employment and Housing also takes the position that an employer may not inquire or seek information regarding an applicant concerning any conviction for which the record has been judicially ordered sealed, expunged or statutorily eradicated (e.g., juvenile offense records sealed pursuant to Cal. Wel. & Inst. Code § 389 and Pen. Code §§ 851.7 or 1203.45); any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed pursuant to Penal Code § 1203.4. Cal. Code Regs., Tit. 2, § 7287.4(d).
In Massachusetts, it also is unlawful for an employer to request information regarding: an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information. Mass. Gen. Laws Ch. 151B, §4.
In addition, in Massachusetts, an application seeking information concerning prior arrests or convictions must include the following statement:
An applicant for employment with a sealed record on file with the commissioner of probation may answer 'no record' with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. . . . In addition, any applicant for employment may answer 'no record' with respect to any inquiry relative to prior arrest, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution.
Mass. Gen. Laws Ch. 276, §100A. While this requirement may become moot by virtue of the new law prohibiting criminal history inquiries on an initial employment application, this provision was not repealed by the new law.
Thus, as shown above, there are a wide range and multiplicity of state laws that also may regulate the hiring of ex-offenders. State regulation takes many forms, including: (1) workplace notice and posting obligations (N.Y. Lab. Law §201-f (McKinney 2009); (2) limitations on when, during the hiring process, employers may ask applicants about their criminal records (Haw. Rev. Stat.§§378-2(1)(C), 378-2.5(b) (1993 & Supp. 2009); Mass. Ann. Laws ch 151B, §4, ¶9 (LexisNexis 2008); (3) limitations on what records employers may ask applicants about (Cal. Lab. Code §432.70.8 (West 2003); N.Y. Exec. Law §296(16) (McKinney 2010); and, (4) as already noted, restrictions on when employers may rely on criminal records to disqualify applicants from consideration.
A Counter Trend – Restrictions in Hiring Those with Criminal Records
The above discussion demonstrates that employers must take care in dealing with pre-employment inquiries and potential restrictions in the hiring of applicants who have criminal history records, completely unrelated to issues of discrimination under our EEO laws. On the other hand, employers are restricted based on federal regulations in hiring those with criminal records in various settings, such as persons working in financial institutions and transportation, and those handling firearms,8 just to name a few areas. At the state level, a wide range of restrictions may result in bars from employment
As an example, there are very strict restrictions regarding hiring individuals with criminal records in banking institutions. Section 19 of the Federal Deposit Insurance Act (12 U.S.C. §1829) prohibits hiring any person convicted of a crime involving dishonesty, breach of trust, or money laundering. “As part of the statute, pre-trial diversion or similar programs are considered to be convictions. There also is a ten-year ban for certain enumerated crimes. On the other hand, certain crimes, described as “de minimis” do not require a waiver from the FDIC without the prior written consent of the Federal Deposit Insurance Corporation (FDIC),9 In determining whether to grant a waiver, the FDIC will consider the following factors: (1) the conviction and nature and circumstances of the offense; (2) evidence of rehabilitation, including age at conviction, and time elapsed; (3) the position to be held; (4) amount of influence and control over the management of the institution; (5) management’s ability to supervise and control the person’s activities; (6) degree of ownership over the institution; (7) applicability of the institution’s fidelity bond coverage to the individual; (8) opinion of primary Federal and/or state regulator; and (9) any additional relevant factors.
Similarly, DOT’s Federal Motor Carrier Safety Administration has established “Driver Disqualifications and Penalties,” and the specific provisions on “disqualification of drivers” include a detailed set of restrictions/ban on hiring drivers convicted of certain criminal offenses and/or based on the number of such convictions, which may restrict hiring for 60 days, 1 year, 3 years or even include lifetime bans from employment.10
Various federal restrictions have been summarized as follows:11
At the state level, there also are a confusing hodgepodge of restrictions adopted by legislatures and state agencies, in response to diverse events and various policy concerns, which restrict hiring or the ability to work in certain fields based on license restrictions. Making it even more complicated is that most states have not catalogued their restrictions, making it difficult for both employers and those with criminal records to even be aware of some of the applicable restrictions. One recent study explained that at the state level there frequently are three types of job restrictions:
In reviewing the above study, it is clear that the restrictions vary from several years to lifetime bans in the applicable field. Even those of us in the legal field remember our days of admission to the bar when we were concerned that we could be barred from admission if we did not have “good moral character.”13
Any responsible employer today, particularly in certain settings, needs to evaluate the risk of hiring or placing an individual with a criminal record in certain positions where there is a need to protect employees, customers, vulnerable persons, and a company’s assets. An employer also may be subject to potential liability based on the “negligent hiring” doctrine in failing to exercise due diligence to evaluate whether hiring an individual with certain criminal records would create an unreasonable risk to other employees or the public. Liability for negligent hiring will be imposed on an employer if it is aware that the employee is unfit, has reason to believe the employee is unfit, or fails to use reasonable care to discover the employee’s unfitness for the position before hiring him or her, and the plaintiff sustains injuries as a result of the employer’s negligence.15
Some states provide strong support for conducting background investigations as part of an employer’s due diligence in the hiring process. As an example, the Florida State Legislature enacted a statute which provides that an “employer is presumed not to have been negligent in hiring [an] employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general.”16 Traditional case law has also established this rebuttable presumption of due care.17
Various cases also have found that an employer may be viewed as having been negligent in failing to conduct a background check, further underscoring the legitimate business reason for conducting criminal background checks in many employer settings.18 Notwithstanding, even such due diligence is not a guarantee that an employer will be able to prevent acts of violence or other unlawful conduct by its workers.19
Use of Criminal Background Checks By Employers
As discussed in a study on criminal background checks prepared several years ago, there are literally tens of millions of background checks being conducted on an annual basis.20 According to the study, following the aftermath of the events of the terrorist attack of September 11, 2001, we witnessed a dramatic increase in criminal background checks by employers:
Legislation passed by Congress after the September 11 attacks requires new or expanded background checks in an array of areas, such as airline and airport personnel, port workers, and truck drivers who transport hazardous materials. Federal agencies have also recommended, rather than required background checks as well. The Food and Drug Administration (FDA), for example, has issued nonbinding “good practice” guidelines recommending that food establishment operators conduct criminal background checks on all employees.21 Even in the absence of government requirements or encouragement, many in the private sector also have expanded the extent to which they conduct criminal background checks on their employees, business partners, and customers.
A recent survey conducted by the Society for Human Resource Management (“SHRM”) indicates that criminal background checks are conducted for reasons such as the following:22
Further, in terms of whether the organization conducted criminal background checks for any job candidates, the following responses were given:
For those employers conducting criminal background checks for certain positions for select candidates, the categories of job candidates on which checks were conducted were as follows:
The upshot is that employers have implemented criminal background checks for a wide variety of reasons and/or for particular types of positions, including concerns of public safety involving employees, safeguarding property and/or positions of trust, and certain industries in which such background checks are mandated. From my experience, criminal background checks never have been designed as an exclusionary tool to circumvent our laws prohibiting discrimination in the workplace.
EEOC Guidance and Related Initiatives Dealing with Criminal Records
I recognize that the EEOC has expressed its views on criminal history records on a number of occasions over the years, including:
Aside from today’s meeting, I commend the EEOC for its ongoing efforts to gather information and seek input on this issue on prior occasions, including the May 16, 2007 meeting on “Employment Testing and Screening,” and thereafter, on November 20, 2008, when the Commission specifically focused on “Employment Discrimination Faced by Individuals with Arrest and Conviction Records.”
It is my understanding that this Commission meeting on criminal background checks is intended, in part, to seek input into whether the EEOC’s current guidelines should be revised. On careful review, however, I believe that the current guidelines provide the necessary flexibility to address concerns of disparate treatment and disparate impact. The Commission is urged to take care in implementation of any revised guidelines that create significant additional expense to an employer’s operations. Rather, the Commission is urged to work pro-actively with various stakeholders, including the employer community, in creating opportunities to discuss best practices based on its role as a leader in the equal employment opportunity community .
In any review of the current guidelines, the Commission is urged to consider the following:
1. Take Into Account President Obama’s Guidelines to Balance the Need to Protect The Public Welfare with an Employer’s Legitimate Business Needs
I urge the Commission to consider President Obama’s January 18, 2011 Executive Order underscoring the importance of carefully balancing the need to protect the public welfare and also promote job creation:24
Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative.
Equal employment opportunity needs to remain front and center in this country. In evaluating its current rules, I urge the Commission to review the circumstances that led to the 1987 guidelines and recognize employer good faith efforts in formulating workplace policies to ensure consistent treatment among employees, which are tied to an employer’s legitimate business needs. I urge the Commission to work in partnership with the employer community and support good faith efforts in dealing with this challenging issue.
2. The Concern of An “Absolute Bar” to Employment Should Focus on “Sweeping Disqualifications,” Not An Employer’s Efforts to Address Specific Crimes That Are Job-Related
I urge the Commission to again review the case cited in its current guidelines, Green v Missouri Pacific Railroad, 523 F.. 2d 1290 (8th Cir. 1975). In that case the employer had an absolute ban on hiring anyone with “a conviction for any crime other than a minor traffic offense.” The plaintiff applied for a clerk’s job, had done clerical work while incarcerated and the reason for his incarceration was because he refused military induction; the plaintiff had unsuccessfully had sought classification as a conscientious objector. The court took exception with a “sweeping disqualification of all persons with a past record of some unlawful behavior.”
The court in Green addressed the adverse impact of the employer’s policy, relying on Griggs v Duke Power Co, 401 U.S. 424 (1971), and its progeny, and reviewed what it considered “a sweeping disqualification of all persons with a past record of some unlawful behavior.” The Appeals Court in Green made a point of distinguishing the Supreme Court’s decision in McDonnell Douglas v Green, 411 U.S. 792 (1973), pointing out that in McDonnell Douglas the employer’s business reason for refusing to hire the plaintiff for a particular position stemmed from a disruptive act, unlike the “sweeping disqualification” relied on by the employer in Green. The court also cited, with approval, Butts v Nicols, 381 F. Supp. 573 (S.D. Ia. 1974), which struck down a blanket policy prohibiting felons in civil service, but found “instructive” the view by the court in Butts, “There is no doubt that the state could logically prohibit and refuse employment in certain positions where the felony conviction would directly reflect on the felon’s qualifications for the job (e.g. conviction of embezzlement and a job requiring the handling of large sums of money).” The court cited the language in Butts in which clearly suggested that an employer could look in general at ‘the nature and seriousness of the crime in relation to the job sought” and related factors, such as “the time elapsing since the conviction.”
In Green, the Eighth Circuit thereafter endorsed an approach used in the subsequent injunctive order-
[N]othing herein shall prevent [the employer] ...from considering an applicant’s prior criminal record as a factor in making individual hiring decisions so long as defendant takes into account the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or the completion of sentence, and the nature of the job for which the applicant applied.
549 F.2d 1158, 1159-1160 (emphasis supplied). It was this very language that was cited in the EEOC’s subsequent guidelines.
While I recognize that the EEOC is inclined to require an individualized assessment in making personnel-related decisions to justify an employer’s actions as being job-related, I respectfully submit that the EEOC should recognize that circumstances arise in which an employer may legitimately disqualify from employment individuals convicted of certain offenses. As an example, at a minimum, employers in various regulated industries should be permitted to rely on specific laws and regulations and/or licensing restrictions, that may restrict employment on the basis of certain specified criminal convictions. Such industries may include health care, law enforcement, corrections, securities and finance, education, private security, and child care, to name a few.
Various other employers that are involved in mass hiring efforts do not have a blanket exclusion based on criminal convictions, but instead have exercised good faith and have developed a detailed set of criteria in which a certain limited category of offenses are viewed as job-related and preclude employment. Even the EEOC’s Compliance Manual on Race and Color Discrimination supports the view that exclusion may be appropriate where the three-factor test is considered and the “conviction is related to the position, or if the conduct was particularly egregious.”
Over the years, various courts have upheld employers that in good faith developed hiring guidelines that may disqualify applicants based on certain job-related offenses without an individualized assessment in each case. As an example, In Richardson v Hotel Corporation of America, 332 F. Supp. 519 (E.D. La. 1971), aff’d, 468 F. 2d 951 (5th Cir. 1972), the employer hotel rejected applicants for employment in positions it considered “security sensitive” if the applicant had been convicted of a serious property related crimes. The policy was consistently followed, regardless of an employee’s race. The employer did not have a similar hiring disqualification for employees who did not have access to guests’ property. In upholding the policy, the court held, “It is reasonable for management of a hotel to require that persons employed in positions where they have access to valuable property of others have a record reasonably free from convictions for serious property related crimes.”
Similarly, in EEOC v Carolina Freight Carriers Corporation, 723 F. Supp. 734 (S.D. Fla. 1989), the focus was a policy restricting employment of drivers with a felony, larceny or theft crime and who had served an active prison or jail sentence. The drivers had responsibility for “high risk” freight, including computers, video equipment, televisions, volatile gases and drugs, and operated vehicles worth approximately $100,000, with freight having an average value of $100,000. The court held that, even assuming there was an adverse impact, the employer had “articulated a legitimate, non-discriminatory justification for its conviction policy.” The court concluded that the employer only barred applicants convicted of a theft crime involving an active prison sentence, explaining, “Employees are not penalized for mere arrests or commission of non-theft felonies,” and “applicants are only disqualified if they actually serve time in jail.” The court concluded that “[t]his aspect of the policy reflects the employer’s assessment that a court decision to imprison a defendant is a reliable indication of the prospective employee’s character.” The upshot was that the court held that the employer “has offered a business necessity for its conviction policy: the need to minimize losses from employee theft.”
El v SEPTA, 479 F. 3d 232 (3rd Cir. 2007), dealt with a policy that disallowed hiring anyone with a “violent criminal conviction.” The focus was excluding applicants for bus driver positions who, while able to drive a bus, “pose too much of a risk of potential harm to the passengers to be trusted with the job.” The plaintiff had been convicted of second-degree murder 47 years earlier, and the policy virtually posed a lifetime ban under the circumstances. The Third Circuit upheld the employer’s policy and affirmed the summary judgment for the employer based on the finding that someone with a violent conviction presented a materially higher risk than someone without one.25
The most recent case addressing this issue is Fletcher v Berkowitz Oliver Williams Shaw & Eisenbrandt, L.L.P., 537 F. Supp. 2d 1028 1031 (W.D. Mo. 2008), which dealt with the refusal to hire an individual with a criminal history involving conviction for a serious sex offense. The plaintiff alleged that the policy had a disparate impact based on his race. While the court raised questioned whether the plaintiff could successfully show that minorities were convicted of sex offenses in substantially higher percentages to support a violation of Title VII, the court further supported the employer’s articulation of a business necessity standard,
I am satisfied there is adequate business necessity for an employer to decline to employ such an individual or to terminate him after information is received—at least where opportunities for misconduct exist, and employee morale is being protected. Law office situations are sufficiently unguarded as to qualify for the right to decline employment of persons with sex offense records like that of the plaintiff.
537 F. Supp.2d at 1031.
Each of these cases suggest that so long as an employer does not engage in “sweeping disqualifications,” as occurred in Green, neither the current nor any modified guidelines should preclude an employer from identifying certain categories of job-related offenses (i.e. convictions), which may disqualify various applicants who have engaged in that same offense.26 I respectfully submit that in such limited circumstances employers should not be subjected to the extreme cost of requiring an individual assessment of virtually every applicant that has such job-related disqualifying offenses.
As a final point on this issue, some employer representatives have inquired concerning the type of evidence or standard that an employer must meet in order to demonstrate that the exclusion of an applicant based on a criminal conviction is job related and consistent with business necessity. In El v. SEPTA, the Third Circuit held that the business necessity test was met based on evidence that individuals with a prior conviction for violent crime presented a higher risk for violent behavior than the general population. Some employer representatives have suggested that to the extent the EEOC elected to modify its current guidelines, the EEOC should clarify the agency's position on what it takes to meet the business necessity standard by either recognizing and expressly adopting the Third Circuit's decision, or stating that the agency does not intend to follow the decision and then explain what type of evidence an employer must provide in order to establish that excluding an individual based upon a prior criminal conviction is job related and consistent with business necessity.
3. Maintain the Current Guidelines which Recognize The Validity of More Narrowly Drawn Statistics With Serious Consideration Being Given to More Tailored Preliminary Investigations
The criminal history guidelines focus, in principal part, on disparate impact cases which are statistically driven in supporting claims of discrimination. The guidelines issued on July 29, 1987 clearly recognize that “when the employer can present more narrowly drawn statistics showing either that Blacks and Hispanics are not convicted at a disproportionately greater rate or that there is no adverse impact on its own hiring process resulting from the convictions policy, then a no cause determination would be appropriate.”
The July 1987 guidelines further explain that in dealing with “no convictions” policies involving disqualification based on certain subcategories of crimes, the EEOC “has relied on national or regional conviction statistics for crimes as a whole.” The guideline, however, clarifies that narrower statistics are encouraged:
If the employer can present more narrow regional or local data on conviction rates for all crimes showing that Blacks and Hispanics are not convicted at disproportionately higher rates, then a no cause determination would be proper. Alternatively, the employer may present national regional, or local data on conviction rates for the particular crime which is targeted in its crime-specific convictions policy. If such data shows no adverse impact, then a no cause determination would be appropriate. Finally, the employer can use applicant flow data to demonstrate that its conviction policy has not resulted in the exclusion from employment of a disproportionately high number of Blacks and Hispanics.
In any review of the current guidelines, the Commission is urged to reaffirm its interpretation to support this approach in reviewing an employer’s hiring practices dealing with criminal history records. While I recognize that the EEOC initially only may have statistics on a broader scale at its disposal, permitting and endorsing such an approach also will assist in keeping investigations more focused.
With respect to the latter comment, there has been a recent practice at the investigation stage involving pattern or practice investigations for various investigators to approach investigations, such as those involving criminal history records, with a very broad brush, including making requests for nationwide data involving criminal history records. While the purpose of this submission is not to get sidetracked from the issues that are front and center for purposes of this Commission meeting, I respectfully submit that this issue deserves mention. Regardless of the eventual outcome of this meeting, whether the Commission reaffirms the current guidelines, slightly modifies them or issues completely revamped guidelines, employers still will be faced with a review of their practices in any Commission investigation.
I respectfully urge the Commission to consider being receptive to a more nuanced approach in pattern or practice investigations dealing with this issue, initially focusing on a localized basis or, at most, a slightly expanded geographic scope that will enable the EEOC to have sufficient data to make some preliminary findings. The ultimate objective should be for the parties to have a meaningful exchange of information, without unreasonable costs and burdens to either side, and just as importantly, without creating unfair prejudice to either side. Both the EEOC and employers need to be more creative based on limited manpower, budget considerations and fundamental fairness.
4. Be Sensitive To Issues of Small Business
While many larger employers today have been closely reviewing and monitoring the developments involving criminal history records, including the broad range of issues briefly highlighted in this submission, most businesses today are simply trying to survive in today’s economy.
As the Chair and Commissioners are most likely aware, small firms with fewer than 500 employees represent 99.9 percent of the 29.6 million businesses in the country.27 I urge the Commission to carefully consider the impact of any additional costs that may be required based on any changes in the guidelines that are contemplated by the Commission that may impact on such employers.
I also urge the Commission to strengthen its outreach with the small business community, particularly in dealing with this issue. As an example, the SBA has a specific section on its website that deals with conducting criminal background checks, and there is not even mention of any EEO implications relating to conducting criminal background checks. The SBA website discusses pre-employment background checks as follows:28
Performing Pre-Employment Background Checks
When you are hiring employees, you might need a bit more information on a candidate to make an informed decision. However, you do not have unlimited rights to investigate an applicant's background and personal life. Employees have a right to privacy in certain areas. If this right is violated, they can take legal action against you. Therefore, it is important to know what is permitted when following up on a potential employee's background and work history.
The following list includes the types of information that employers often consult as part of a pre-employment check, and the laws governing access and use for making hiring decisions.
Under the Fair Credit Reporting Act (FCRA) employers must obtain an employee's written consent before seeking an employee's credit report. If you decide not to hire or promote someone based on information in the credit report, you must provide a copy of the report and let the applicant know of his or her right to challenge the report under the FCRA. Some states have more stringent rules limiting the use of credit reports. Using Consumer Credit Reports: What Employers Need to Know details the Fair Credit Reporting Act's impact on pre-employment checks.
To what extent a private employer may consider an applicant's criminal history in making hiring decisions varies from state to state. Because of this variation, you should consult with a lawyer or do further legal research on the laws of your state before probing into whether or not an applicant has a criminal past.
For Federal Bureau of Investigation (FBI) checks, consult these resources:
FBI Services for Businesses
Offers assistance to businesses in the areas of employee background investigation, antitrust investigation, trade secret and intellectual property protection, cyberspace patrol, economic espionage and anti-terrorism.
FBI Criminal History Checks for Employment and Licensing
Advises employers to contact the agency requiring the background check or the appropriate state identification bureau (or state police) for the correct procedures to follow for obtaining an FBI fingerprint background check for employment or licensing purposes.
5. Consider Developing A Liaison or Consortium With Other Federal Agencies That Deal with Criminal History Records.
Finally, as discussed in various portions of this submission, employers frequently are faced with a wide range of laws and regulatory agencies when dealing with criminal history records. At times employers may feel that compliance with their obligations involving one regulatory agency may subject it to potential violations with another agency regulating employers in this area.
The EEOC has the opportunity to take a leadership role in setting up a liaison with Federal and/or state agencies that are involved in dealing with criminal history records. At the Federal level, aside from the EEOC, the Federal agencies involved could include the DOT, FDIC, ATF, and FDA, just to name a few. Improved communication, exchanges of information and avoiding potentially conflicting obligations could be key objectives. Creating a nationwide consortium to help all concerned improve their understanding of this complex area involving a myriad of laws and obligations could be a starting point in the process.
6. Focus on Education and Outreach in EEOC Guidelines Dealing With Criminal History Records in Employment
As all of you are aware, when we have witnessed new laws or regulations on the books, we frequently have seen “honeymoon” periods in order to promote education, compliance and best practices. I encourage the Commission to consider such an approach in dealing with the criminal history records.
From all indications, and some of the recent studies that I have read, there has been a lot of misinformation and/or misunderstandings by various employers. To some, there may be a mistaken impression that because individuals with criminal histories do not have protected status under Title VII or any other Federal law, employers need only concern themselves with having consistent employment practices. Even for those who have kept abreast of recent developments, there is a certain level of confusion in the employer community concerning an employer’s obligations under our Federal EEO laws.
Until relatively recently, we really had not witnessed any significant litigation, or even systemic investigations, by the EEOC on this issue. In many respects, we are breaking ground in new territory.
I sincerely believe we have an opportunity to be pro-active, by reaching out, educating the public and encouraging employers, and others, to come forward with proposed best practices so that we can have a frank exchange in dealing with this challenging issue. The likelihood of this occurring is far less promising if employers are concerned that by stepping forward they are risking litigation. I may be the eternal optimist, and perhaps naïve, but I would like to believe that we have an opportunity to find creative solutions if the focus is continued dialogue, education and compliance.
I want to thank you for being given the privilege and honor of appearing before the Chair and the Commissioners to share some thoughts on the complex issues involved concerning the use of criminal background checks in employment. This is a topic that certainly lends itself to ongoing discussion and dialogue, and in the limited time provided since receiving the invitation to discuss this issue, I obviously only began to touch the surface.
I encourage the EEOC to continue its outreach to other stakeholders and leaders in the field dealing with criminal background checks. There is a strong likelihood that we will see continued, and perhaps expanded, reliance on criminal history records by employers in the years to come. As stated at the outset, there clearly is a public interest and important public policy of integrating ex-offenders into the workforce. We need to continue to find creative ways for individuals to engage in rehabilitation and even opportunities for individuals to clear their records so they are not barred from certain types of employment. There clearly are many interests that need to be weighed in the balance. Thoughtful discussions, such as the Commission’s public meeting, create opportunities for a frank and open discussion, and I hope this meeting is merely part of an ongoing dialogue on this important topic.
1 When discussing “criminal records” or “criminal history records,” my focus is on criminal conviction records, rather than arrest records. Except as otherwise noted, any reference to criminal history records is intended to refer to criminal conviction records.
2 Each of the state pre-employment guidelines reproduced herein are based on guidelines in effect as of 1988 by the applicable state fair employment practice agency, as published in Employer’s Guide to Auditing Personnel and Employment Practices, authored by Barry A. Hartstein (Business Laws, Inc., 1988).
4 See, e.g. N.Y. Correct. Law §752-54 (McKinney 2003); N.Y. Crim. Proc. Law §160.60 (McKinney 2004); N.Y. Exec. Law §296(15-(16)) (McKenney 2010); see also Haw. Rev. Stat. §Stat. §378-2.5(a) (Supp. 2009); 18 Pa. Cons. Stat. Ann. §9125 (West 2000); Wis. Stat. Ann. §111.335(1)(c) (2002).
5 For example, the Colorado Civil Rights Division takes the position that an employer may inquire about convictions that are substantially related to the applicant's ability to perform a specific job, if the question is addressed to every applicant. See http://www.dora.state.co.us/civil-rights/publications_and_services/Employment_Discriminaton_Brochures/JobDiscrim2001.pdf.
6 As an example, based on the FCRA, criminal convictions are reportable indefinitely. California, on the other hand, follows a seven-year rule on convictions, as previously applicable under the FCRA. (CA Civil Code 1786.18). In New York, if the job position an applicant is seeking has an annual salary of less than $25,000, then the background check may only report criminal convictions that occurred in the previous seven years, but if the salary is equal to or greater than $25,000, then all criminal convictions may be reported. (N.Y. State’s Fair Credit Reporting Act, N.Y. Ge. Bus. Law §380).
8 The Gun Control Act (GCA) makes it unlawful for certain categories of persons, which has been viewed as including employees, from handling firearms, and lists a wide range of offenses, including those “under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year,” an individual “convicted of a crime punishable by imprisonment for a term exceeding one year,: or convicted of a misdemeanor crime of domestic violence,” to name a few of the offenses. 18 U.S.C§922(g).
9 An excellent summary of the restrictions regarding hiring individuals with criminal records at financial restrictions, and the applicable “FDIC Statement of Policy,” is set forth at http://hirenetwork.org/FDIC.html , prepared by the National H.I.R.E. Network.
12 The above-referenced study prepared for the State of Florida is entitled, “Inventorying and Reforming State-Created Restrictions Based on Criminal Records: A Policy Brief and Guide,” September 2008, Linda Mills, The Annie E. Casey Foundation. A detailed summary of the restrictions is set forth in “Appendix B” of the study. See http://nationalreentryresourcecenter.org/publications/inventorying-and-reforming-state-created-employment-restrictions-based-on-criminal-records-a-policy-brief-and-guide.
13 According to the Florida study, the courts have attempted to define “good moral character” as: “Not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.” Id. at 41. See http://nationalreentryresourcecenter.org/publications/inventorying-and-reforming-state-created-employment-restrictions-based-on-criminal-records-a-policy-brief-and-guide
14 A detailed discussion of negligent hiring doctrine is set forth in a chapter on “Employment Torts,” National Chapter 8 in The National Employer (2011/2012 Edition); see also “Report of the National Task Force on the Commercial Sale of Criminal Justice Information,” prepared by SEARCH, the National Consortium for Justice Information and Statistics, which was produced a product of project funded by the Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice (Jan. 16, 2006). See http://www.reentry.net/library/item.93793-Report_of_the_National_Task_Force_on_the_Commercial_Sale_of_Criminal_Justic. The above discussion is based in relevant part of the more extensive discussion set forth in these publications.
15 Girard v. Trade Prof’ls, Inc., 50 F. Supp. 2d 1050, 1054 (D. Kan. 1999), aff’d, 2001 U.S. App. LEXIS 15772 (10th Cir. July 13, 2001) (negligent hiring doctrine recognizes employers have duty to hire only safe and competent employees; employer breaches duty when it hires employees it knows or should know are incompetent); Strickland v. Communications & Cable of Chicago, 710 N.E.2d 55, 58 (1999) (Ill. App. Ct. 1999) (to establish negligent hiring, plaintiff must prove employer knew or should have known the person hired had a particular unfitness for the job that would create a foreseeable danger to others, and this was proximate cause of plaintiff’s injury); Godar v. Edwards, 588 N.W.2d 701, 708-09 (Iowa 1999) (Iowa Supreme Court recognizes negligent hiring claim; plaintiff must prove an employment relationship exists, the employer knew, or in the exercise of ordinary care should have known, of its employee’s unfitness at the time of hiring, and the employee’s incompetence, unfitness, or dangerous characteristics proximately caused the resulting injuries).
18 See J. v Victory Tabernacle Baptist Church, 372 S.E. 2d 391, 394 (Virginia, 1988) (church knew or should have known that employee, who sexually assaulted minor, had previous similar crime); Oakley v Flor-Shin Inc. 964 S.W. 2d 438 (Ky. Ct. App. 1998)(if employer had conducted background check, per established policy, employer would have known of employee’s past criminal record and presented issue of fact on negligent hiring theory); Kladstrup v Westfall Health Care Center, Inc. 701 N.Y.S. 808, 811 (Sup. Ct. N.Y. 1999) (nature of duties of nurse’s aide obligate employer “to make an in-depth inquiry to assure that an applicant...does not have a history of sexual misconduct); Welsh Mfg. v Pinkerton’s, Inc. 474 A.2d 436, 441 ( Rhode Island, 1984)(“when an employee is being hired for a sensitive occupation, mere lack of negative evidence may not be sufficient to discharge the obligation of reasonable care”... “background checks in these circumstances should seek relevant information that might not otherwise be uncovered”).
19 See e.g. C.C. v Roadrunner Trucking, Inc.. 823 F. Supp. 913 (D. Utah 1993), affirming decision from magistrate, 1993 U.S. Dist. Lexis 7251 (background check typically done in trucking industry and deemed adequate in case in which truck driver raped hitchhiker); Gay v United States, 739 F. Supp. 275 (D. Md. 1990)(employer conducted background check and assault was unpredictable and out of character and could not have been anticipated or guarded against).
20 See Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information (Jan. 16, 2006), http://www.reentry.net/library/item.93793-Report of the National Task Force on the Commercial Sale of Criminal Justice.
21 The FDA defines operators of a food establishment to include firms that produce, process, store, repack, relabel, distribute, or transport food or food ingredients. “Guidance for Industry: Food Producers, Processors, and Transporters: Food Security Preventive Measures Guidance,” U.S. Dept. Of Health and Human Services, U.S. Food and Drug Administration, Center of Food Safety and Applied Nutrition (March 21, 2003) (recommending that operators have “a criminal background check performed by local law enforcement or by a contract service provider”).
22 This findings by SHRM, issued on January 22, 2010, were based on a random sample of approximately 3000 HR professions from SHRM members in which 433 responded. According to the sample, 65% had 500 or more employees, 28% had 100-499 employees and 7% had 1-99 employees.
25 The Third Circuit essentially viewed the business necessity standard regarding the hiring restriction involving criminal convictions as sui generis, and subjected them to a unique method of analysis. On the one hand, the Court discussed the Griggs standard, referring to the “minimum qualifications for successful performance of the job in question.” However, after reviewing the basic standard, the court essentially disclaimed application of a traditional job-related hiring standard, explaining that “the standard is worded to address ability, not risk. Yet, the issue before us is the risk that the employee will harm a passenger, and the phrase ‘minimum qualifications’ simply does not fit, as it is hard to articulate the minimum qualification for posing a low risk of attacking someone.” 479 F.2d at 242-243.