Babysitting Dos And Don'ts, Articles E

First, we emphasize that arrests and convictions are treated differently. When an informal or unscored selection procedure which has an adverse impact is utilized, the user should eliminate the adverse impact, or modify the procedure to one which is a formal, scored or quantified measure or combination of measures and then validate the procedure in accord with these guidelines, or otherwise justify continued use of the procedure in accord with Federal law. The Transportation Security Administration (TSA) conducts a criminal background check and may deny the credential to applicants who have permanently disqualifying criminal offenses in their background as defined by federal law. However, it has issued an Enforcement Guidance that discusses situations where individuals or organizations file charges on the basis of matched-pair testing, among other practices. Cal.1970). at 1292""93. "); see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (concluding that the ADEA does not preclude an employer from favoring an older employee over a younger one within the protected age group). practices that are fair in form, but discriminatory in operation. Thus, even though the policy has a disparate impact on Hispanics, the EEOC does not find reasonable cause to believe that discrimination occurred because the policy is job related and consistent with business necessity. 451 (2006), http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; see also Harry Holzer et al., Urban Inst., Employer Demand for Ex-Offenders: Recent Evidence from Los Angeles 6""7 (2003), https://www.urban.org/research/publication/employer-demand-ex-offenders (describing the results of an employer survey where over 40% of the employers indicated that they would "probably not" or "definitely not" be willing to hire an applicant with a criminal record). information only on official, secure websites. An employer's neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability). 1975) (concluding that the defendant's criminal record exclusion policy had a disparate impact based on race by evaluating local population statistics and applicant data), appeal after remand, 549 F.2d 1158, 1160 (8th Cir. Code 12-60-16.6(2)); Pennsylvania (18 Pa. Cons. See Background Checks, supra note 25, at 48""49. 1111(a)), participation in Medicare and state health care programs (42 U.S.C. What You Should Know About the EEOC and Arrest and Conviction Records, Questions and Answers About the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII. "113 Although there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications,114 and thereby provide a framework for validating some employment exclusions, such studies are rare at the time of this drafting. . on Federal Hiring Policies, Fed. ; see generally Victoria Kane, Transcript of 7-26-11 Meeting, U.S. The EEOC issues regular guidance concerning background checks for employment purposes. 38. The Guidance discusses disparate treatment and disparate impact analysis under Title VII. Id. EEOC Background Check Guidelines For Staffing & More - Crimcheck When Mervin becomes annoyed and comments that his offense is simply "driving while Black," the officer arrests him for disorderly conduct. 29-3523(2)) (ordering no dissemination of arrest records under certain conditions and specified time periods)); New York (N.Y. Exec. Corp., FDIC Statement of Policy For Section 19 of the FDI Act, C, "Procedures", Nat'l H.I.R.E. After several ten and eleven-year-old girls attending the school accused him of touching them inappropriately on the chest, Andrew was arrested and charged with several counts of endangering the welfare of children and sexual abuse. Employer policies typically specify the duration of a criminal conduct exclusion. Order No. In addition, when you run background checks through company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). 59 42 U.S.C. 1-844-234-5122 (ASL Video Phone) Applied Psychol. ("[T]he Director of [OPM] . 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. Enforcement Guidance on the Consideration of Arrest and Conviction 160 See 5 C.F.R. . 13 Prevalence of Imprisonment, supra note 4, at 1. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged.69 This rate climbs to 1 in 6 (or 17.2%) for Hispanic men.70 For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%).71 Based on a state-by-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites,72 and 7 states had a Black-to-White ratio of incarceration that was 10 to1.73 In 2010, Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men.74, National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact based on race and national origin. If an employer successfully demonstrates that its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory "alternative employment practice" that serves the employer's legitimate goals as effectively as the challenged practice but that the employer refused to adopt. Posted in Criminal Background Checks, EEOC and Government Litigation, Employment Discrimination, Employment Policies After a nearly six-year legal battle, the Fifth Circuit has struck down the U.S. at 18. 2381 (prohibiting individuals convicted of treason from "holding any office under the United States"). The new company had a blanket policy of firing anyone with a felony conviction less than 10 years old. They have similar educational backgrounds, skills, and work experience. Many arrests do not result in criminal charges, or the charges are dismissed.102 Even if an individual is charged and subsequently prosecuted, he is presumed innocent unless proven guilty.103. 43 A "consumer report" is defined by FCRA as "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for . 106 See Clark v. Arizona, 548 U.S. 735, 766 (2006) ("The first presumption [in a criminal case] is that a defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense charged. 5104(b)(2)), registration of brokers and dealers (15 U.S.C. Interpretation of some EEOC rules can be a challenge, and not every court always reads the rules the same way. Network, People with Criminal Records Working in Financial Institutions: The Rules on FDIC Waivers, Fed. 'Ban the Box' Turns 20: What Employers Need to Know - SHRM 2000e-2(k)(1)(A)(ii). Id. 2006) (upholding a preliminary jury instruction that stated that a "defendant is presumed to be innocent unless proven guilty. Secure .gov websites use HTTPS 12 U.S.C. 843(d)), and farm labor contractor's certificates of registration (29 U.S.C. Similarly situated comparators (individuals who are similar to the charging party in relevant respects, except for membership in the protected group). [a]ny other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years."). 163 See generally Shriver, supra note 157. 401, 403 (C.D. 56 Race & Color Discrimination, supra note 15, V.A.1. The Equal Employment Opportunity Commission (EEOC or Commission) is amending its procedural regulations to explicitly provide for digital transmissions of documents, to clarify the process for deferral to state and local agencies, to update no cause determination procedures, and to correct typographical and textual errors. . 378-2.5(b). After confirming disparate impact based on race (African American), the EEOC finds reasonable cause to believe that Title VII was violated because the targeted exclusion was not job related and consistent with business necessity based on these facts. Andrew, a Latino man, worked as an assistant principal in Elementary School for several years. He asserts that it has a disparate impact based on national origin and that his employer may not suspend or terminate him based solely on an arrest without a conviction because he is innocent until proven guilty. Background Checks: What Job Applicants and Employees Should Know While Title VII does not mandate that an employer seek such waivers, where an employer does seek waivers it must do so in a nondiscriminatory manner. The Predictive Value of Criminal Background Checks, supra note 99, at 43. v. Hynes, 467 F.3d 951, 957 (6th Cir. Background Checks When making personnel decisions -- including hiring, retention, promotion, and reassignment -- employers sometimes want to consider the backgrounds of applicants and employees. An officer stops them and interrogates them about their destination. Example 4: Employer's Inquiry into Conduct Underlying Arrest. "159 Under OPM's rules, agencies may bar individuals from federal employment for up to three years if they are found unsuitable based on criminal or dishonest conduct, among other factors.160 OPM gives federal agencies the discretion to consider relevant mitigating criteria when deciding whether an individual is suitable for a federal position.161 These mitigating criteria, which are consistent with the three Green factors and also provide an individualized assessment of the applicant's background, allow consideration of: (1) the nature of the position for which the person is applying or in which the person is employed; (2) the nature and seriousness of the conduct; (3) the circumstances surrounding the conduct; (4) the recency of the conduct; (5) the age of the person involved at the time of the conduct; (6) contributing societal conditions; and (7) the absence or presence of rehabilitation or efforts toward rehabilitation.162 In general, OPM requires federal agencies and departments to consider hiring an individual with a criminal record if he is the best candidate for the position in question and can comply with relevant job requirements.163 The EEOC continues to coordinate with OPM to achieve employer best practices in the federal sector.164, States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct.165 Unlike federal laws or regulations, however, 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.166 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 liability.167. The new guidance and related documents are available on the EEOC's website at: EEOC Press Release; for Disease Control & Prevention, Workplace Violence Prevention Strategies and Research Needs 4, Table 1 (2006), http://www.cdc.gov/niosh/docs/2006-144/pdfs/2006-144.pdf (reporting that approximately 85% of the workplace homicides examined were perpetrated in furtherance of a crime by persons with no relationship to the business or its employees; approximately 7% were perpetrated by employees or former employees, 5% were committed by persons with a personal relationship to an employee, and 3% were perpetrated by persons with a customer-client relationship to the business). Criminal Histories and Employment Background Checks, Fed. 1427, 1430 (2007), https://www.researchgate.net/publication/5995682_Predicting_the_Counterproductive_Employee_in_a_Child-to-Adult_Prospective_Study (finding that in a study of New Zealand residents from birth to age 26, "[a]dolescent criminal convictions were unrelated to committing counterproductive activities at work [such as tardiness, absenteeism, disciplinary problems, etc.]. 29 Background Checks, supra note 25, at 4. Pew Ctr. . Stat. Employers must be aware of the laws, regulations, and guidance that the EEOC enforces and abide by those requirements. 24 See SEARCH, The National Task Force on the Criminal Backgrounding of America 3, 4 (2005), http://www.search.org/files/pdf/ReportofNTFCBA.pdf. But see id. . . 1320a-7l(a)(3)(A), (a)(4)(B), (6)(A)""(E). [bringing] the total population in custody to 2.3 million. States must ensure that any covered employee under paragraph (a) of this section is provided notice that he or she must . EEOC Settles Background Check Litigation with BMW, But Also Faces Steep The Commission will assess relevant evidence when making a determination of disparate impact, including applicant flow information maintained pursuant to the Uniform Guidelines on Employee Selection Procedures,75 workforce data, criminal history background check data, demographic availability statistics, incarceration/conviction data, and/or relevant labor market statistics.76, An employer's evidence of a racially balanced workforce will not be enough to disprove disparate impact. Some of those requirements apply to background checks and the hiring process. Title VII thus does not necessarily require individualized assessment in all circumstances. A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests.37, A 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI's III database were associated with a final disposition. 339 (1964""1965 Comp.). Title VII, 29 CFR Part 1601, 29 CFR Part 1606, 29 CFR Part 1607, Employers, Employees, Applicants, Attorneys and Practitioners, EEOC Staff. 80b-3(e)(2)-(3), (f)). 111 See 29 C.F.R. Rec. 111.321, 111.335a). 121 Cf. "); see id. App. Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/eeoc/meetings/7-26-11/transcript.cfm#saltzburg (last visited April 23, 2012) (discussing the findings from the American Bar Association's (ABA) Collateral Consequences of Conviction Project, which found that in 17 states that it has examined to date, 84% of the collateral sanctions against ex-offenders relate to employment). 196 (2009 Comp.) 215), embezzlement or theft by an officer/employee of a lending, credit, or insurance institution (18 U.S.C 657), false or fraudulent statements by an officer/employee of the federal reserve or a depository institution (18 U.S.C. Most individuals probably are unaware that they have this right. See also Nat'l Ass'n of Prof'l Background Screeners, supra note 20 at 5. 146See 46 U.S.C. 206 (1978 Comp.). 5 See John Schmitt & Kris Warner, Ctr. See also LexisNexis, supra note 18, at 5 (reporting that "all 50 states currently have a publicly available sex offender registry"). 24, 2012) NELP, Highlights of EEOC's New Criminal Record Guidance (Apr. See Age Discrimination in Employment Act, 29 C.F.R. Pre-School performs a background check and learns that Elijah pled guilty to charges of indecent exposure two years ago. More specifically, such information also includes which offenses or classes of offenses were reported to the employer (e.g., 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 (e.g., the last five, ten, or twenty years); and the jobs for which the criminal background screening was conducted.64 Training or guidance documents used by the employer also are relevant, because they may specify which types of criminal history informationto gather for particular jobs,how to gather the data, and how to evaluatethe information after it is obtained. Andrew denies the allegations, saying that he may have brushed up against the girls in the crowded hallways or lunchroom, but that he doesn't really remember the incidents and does not have regular contact with any of the girls. 23, 2011) Press When Background Screens Turn Up Criminal Records - SHRM . 37 Dennis A. DeBacco & Owen M. Greenspan, Bureau of Justice Statistics, U.S. Dep't of Justice, Survey of State Criminal History Information Systems, 2010, at 2 (2011), https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafter State Criminal History]. Designation of a position as a "sensitive position" will fall under one of three sensitivity levels: Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive. The Commission intends this document for use by employers considering the use of criminal records in their selection and retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges involving the use of criminal records in employment decisions. The Act protects applicants and employees in several ways, for example, by: (1) providing a 60-day provisional period of employment for the prospective employee, pending the completion of the criminal records check; (2) providing an independent process to appeal or dispute the accuracy of the information obtained in the criminal records check; and (3) allowing the employee to remain employed (subject to direct on-site supervision) during the appeals process. Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/eeoc/meetings/11-20-08/pager.cfm (last visited April 23, 2012) (discussing the results of the Sequencing Disadvantage study); Devah Pager & Bruce Western, NYC Commission on Human Rights, Race at Work, Realities of Race and Criminal Record in the NYC Job Market 6, Figure 2 (2006), https://scholar.harvard.edu/pager/publications/race-work-realities-race-and-criminal-record-new-york-city-job-market (finding that White testers with a felony conviction were called back 13% of the time, Hispanic testers without a criminal record were called back 14% of the time, and Black testers without a criminal record were called back 10% of the time). Section 105(b) of the Civil Rights Act of 1991 provides that only the interpretive memorandum read by Senator Danforth in the Congressional Record may be considered legislative history or relied upon in construing or applying the business necessity standard. The Guidance however attempts to. . 2 All entities covered by Title VII are subject to this analysis. John, who is White, and Robert, who is African American, are both recent graduates of State University. See also Am. 13726(b)(1) (disqualifying persons with felony convictions or domestic violence convictions from working for a private prisoner transport company); 25 U.S.C. The EEOC enforces federal laws that prohibit discrimination - including based on race and national origin - in private, state and local government, and federal sector workplaces. on the States, supra, at 8, Figure 2. One in 31, supra note 4, at 5 ("Black adults are four times as likely as whites and nearly 2.5 times as likely as Hispanics to be under correctional control. PURPOSE: The purpose of this Enforcement Guidance is to consolidate and update the U.S. . 13,467, 2.3(b), 3 C.F.R. See, e.g., 5 U.S.C. We cannot continue to process your application at this time.". 1607.15A. If Nelson filed a Title VII charge alleging disparate treatment based on national origin and the EEOC's investigation confirmed these facts, the EEOC would find reasonable cause to believe that discrimination occurred. . Nevada Equal Rights Commission Admin., U.S. Dep't of Health & Human Servs., Results from the 2010 National Survey on Drug Use and Health: Summary of National Findings 21, Human Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States 1, Harry Levine & Deborah Small, N.Y. Civil Liberties Union, Marijuana Arrest Crusade: Racial Bias and Police Policy In New York City, Marc Mauer & Ryan S. King, The Sentencing Project, Uneven Justice: State Rates of Incarceration by Race and Ethnicity, Paul Guerino et al., Bureau of Justice Statistics, U.S. Dep't of Justice, Prisoners in 2010, Thomas H. Cohen & Tracey Kyckelhahn, Bureau of Justice Statistics, U.S. Dep't of Justice, Felony Defendants in Large Urban Counties, 2006, Nat'l League of Cities & Nat'l Emp't Law Project, Cities Pave the Way: Promising Reentry Policies that Promote Local Hiring of People with Criminal Records, Nat'l Emp't Law Project, City and County Hiring Initiatives, Patrick A. Langan & David J. Levin, Bureau of Justice Statistics, U.S. Dep't of Justice, Special Report: Recidivism of Prisoners Released in 1994, Int'l J. of Offender Therapy and Comp. . L. No. For Econ. Keep information about applicants' and employees' criminal records confidential. In 2010, 28% of all arrests were of African Americans,65 even though African Americans only comprised approximately 14% of the general population.66 In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population.67 Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.68, African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. [is] responsible for developing and implementing uniform and consistent policies and procedures to ensure the effective, efficient, and timely completion of investigations and adjudications relating to determinations of suitability and eligibility for logical and physical access. Offender Workforce Dev., https://www.drc.ohio.gov/owd (last updated Aug. 9, 2010). Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/eeoc/meetings/11-20-08/moskowitz.cfm (last visited April 23, 2012) (stating that one of the factors that is relevant to the assessment of an ex-offender's risk to a workplace and to the business necessity analysis, is the "length and consistency of the person's work history, including whether the person has been recently employed"; also noting that various studies have "shown a strong relationship between employment and decreases in crime and recidivism"). Freeman is an event management company that used both criminal background checks and credit reports in their pre-employment screening process in . Interagency Reentry Council, Reentry Mythbuster! 2d 1, 8 (D.D.C. Equal Emp't Opportunity Comm'n, II, Legislative History (May 1, 1989), http://www.eeoc.gov/policy/docs/national_security_exemption.html ("[N]ational security requirements must be applied equally without regard to race, sex, color, religion or national origin. "), modified on other grounds, 472 F.2d 631 (9th Cir. EEOC Settles Background Check Litigation with BMW, But Also Faces Steep Attorneys' Fees in Freeman Case By Jennifer Mora and Rod Fliegel on September 22, 2015 Download PDF While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job's duties (e.g., data entry, lifting boxes), identification of the job's essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job's duties are performed (e.g., out of doors, in a warehouse, in a private home). The legal elements of a crime also may be instructive. 61.15). Stat. 149 See 46 U.S.C. Equal Employment Opportunity Commission's guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 1681 et seq. . . 1681a(d)(1) (emphasis added). 12,968, 3.1(b), 3 C.F.R. Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. . 1033(e)), employee benefits employee (29 U.S.C. See, e.g., Substance Abuse & Mental Health Servs. without increasing public safety should be eliminated." 78-35 (1978) (concluding that an employee's discharge was reasonable given his pattern of criminal behavior and the severity and recentness of his criminal conduct). Corp. 2010 Annual Report, VI.A: Key Statistics, FDIC Actions on Financial Institution Applications 2008""2010 (2011), http://www.fdic.gov/about/strategic/report/2010annualreport/chpt6-01.html (reporting that between 2008 and 2010, the FDIC approved a total of 38 requests for consent to employ individuals with covered offenses in their background; the agency did not deny any requests during this time period). Matched-pair testing may reveal that candidates are being treated differently because of a protected status.58. Inc.,316 F. Supp. 123 See Laura Moskowitz, Statement of Laura Moskowitz, Staff Attorney, National Employment Law Project's Second Chance Labor Project, U.S. 1, 17""24 (2001), http://www.ncjrs.gov/pdffiles1/Digitization/192542-192549NCJRS.pdf (stating that factors associated with personal rehabilitation and social stability, such as stable employment, family and community involvement, and recovery from substance abuse, are correlated with a decreased risk of recidivism). 131 M Street, NE Policy, Learning to Reduce Recidivism: A 50 State Analysis of Postsecondary Correctional Education 5 (2005), http://www.ihep.org/assets/files/publications/g-l/LearningReduceRecidivism.pdf (finding that increasing higher education for prisoners enhances their prospects for employment and serves as a cost-effective approach to reducing recidivism); see also John H. Laud & Robert J. Sampson, Understanding Desistance from Crime, 28 Crime & Just. "120, Example 5: Exclusion Is Not Job Related and Consistent with Business Necessity. But cf. Harry J. Holzer et al., Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. As the Supreme Court stated in Dothard v. Rawlinson, an employer's "application process might itself not adequately reflect the actual potential applicant pool since otherwise qualified people might be discouraged from applying" because of an alleged discriminatory policy or practice.79 Therefore, the Commission will closely consider whether an employer has a reputation in the community for excluding individuals with criminal records. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job related and consistent with business necessity.