By Howard L. Mocerf
The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of race, color, religion, sex or national origin. It does not per se prohibit rejection of job applicants or termination of employees because of criminal arrests or convictions.
The EEOC has long taken the view that using arrest or conviction information in making employment decisions can constitute Title VII discrimination. On April 25, the EEOC issued 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 stated reason is statistical data showing that blacks and Latinos are increasingly arrested and convicted of crimes to a significantly larger extent than nonminorities and that 92 percent of employers subject some or all job applicants to criminal background checks.
The EEOC guidance document discusses how the agency will evaluate discrimination charges in employment decisions based on arrests or convictions under two Title VII theories of liability: disparate treatment and disparate impact. Disparate treatment is intentional discrimination in which an employer treats criminal history information differently for different applicants because of their Title VII-protected status. Under disparate impact analysis, an employer's facially neutral policy concerning the use of criminal background information can violate Title VII if it has the effect of disproportionately screening out minority applicants and the employer cannot prove that the policy is job-related for the position in question and consistent with business necessity. The guidance document states that national data concerning the statistically greater arrest and conviction rates of blacks and Latinos is sufficient alone for finding disparate impact for those groups. An employer can rebut that finding by evidence of regional or local data that contradicts the national data or by using its own applicant flow data.
If disparate impact is shown, the guidance document identifies two ways employers may prove job relatedness and business necessity. One is by validating its policy under the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Section 1607.5, but there are currently insufficient statistical studies linking particular criminal conduct and subsequent work performance. The second is by developing targeted screening based on the factors set out in Green v. Missouri Pacific RR, 523 F.2d 1290 (8th Cir. 1975), followed by individual assessment of applicants excluded by the screen, unless the application of the Green factors alone clearly meet the job-related/business necessity test. The Green factors are the nature or gravity of the offense, the time elapsed since the offense or completion of sentence and the nature of the job sought. Individualized assessment requires notice to the excluded person of the reason for exclusion, opportunity to show why the exclusion should not apply and consideration of whether the information provided by the person should warrant an exception.
The Illinois Human Rights Act prohibits inquiring into or using an arrest in making any employment decision, but permits obtaining and using other information that indicates that the person actually engaged in the conduct giving rise to the arrest. 775 ILCS 5/2 – 103. The guidance document on arrests has no relevance for employers subject to that act. Employers who follow best practices already use a Green-factor caveat in questions about convictions on applications and make the individualized assessments suggested.
Perhaps the most significant feature of the guidance document is the EEOC's position that disqualifying a person from a job because of a criminal conviction where mandated by state or local law will not shield an employer from Title VII liability unless the employer can demonstrate that the disqualification satisfies the job-related/business necessity test. Illinois has a number of laws and regulations that prohibit employers in specific state- regulated businesses from employing persons in certain jobs if they have been convicted of crimes identified. For example, the Health Care Worker Background Check Act, 225 ILCS 46/1, prohibits employers in a variety of state-regulated, health-care businesses from employing anyone in a job that involves contact with patients, residents, clients, their living quarters or their records if the person has been convicted of any one of 110 crimes.
The EEOC takes the position that Section 708 of Title VII, 42 U.S.C. Section 2000e-7, pre-empts such state criminal conviction laws. That section exempts employers from complying with state law if that law requires or permits a violation of Title VII. Section 708 has been held to pre-empt defenses to disparate impact claims based on employers' mandatory compliance with laws such as those governing height/weight requirements for public safety employees, tests for teachers and hazardous work for female employees. It has not been applied to state laws, like the Health Care Worker Background Check Act, enacted in the state's police power to protect vulnerable people served by regulated businesses from being victimized. Such application is likely to raise a pre-emption issue.