EEOC Holds Meeting to Discuss Impact of Criminal History on Employment: Littler Shareholder Barry Hartstein Testifies
On Tuesday the Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss how an individual’s arrest and conviction records impede employment, but failed to reveal whether it would alter its enforcement guidance on this topic. Currently, under the Commission’s Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, if an employer’s conviction-based screening policy causes a disparate impact, the employer must show that it considered the “nature and gravity of the offense,” the “time that has passed since the conviction and/or completion of sentence,” and the “nature of the job held or sought.” These guidelines have been in place since 1987. However, in a recent Third Circuit case, the court held an employer to a higher burden if its conviction screening policy disparately impacted protected classes. Specifically, in El v. South Eastern Pennsylvania Transportation Authority (SEPTA), the Third Circuit ruled that if an employer’s conviction-based screening policy results in such a disparate impact, the employer must produce “empirical evidence” justifying its screening policy in order to establish a “business necessity” affirmative defense under Title VII. Notably, the EEOC is currently prosecuting a disparate impact lawsuit against at least one employer based on its conviction-based screening policy, has initiated “systemic discrimination” investigations against other employers, and has been holding meetings on this topic.
To this end, EEOC Chair Jacqueline A. Berrien said that Tuesday’s meeting would serve as an “opportunity to add to our knowledge of this issue and learn about the practical ways employers have been able to balance business concerns with the need to ensure that employment practices are fair and non-discriminatory.” The meeting was divided into three panel discussions: Best Practices for Employers; An Overview of Local, State and Federal Programs and Policies; and Legal Standards Governing Employers’ Consideration of Criminal Arrest and Conviction Records. While a number of the panelists urged the Commission to remove what they perceived as barriers to the employment of individuals with criminal records, Littler attorney Barry Hartstein, testifying on the third panel, emphasized that “there are many interests that need to be weighed in the balance in dealing with criminal history records, including criminal background checks in employment.” Hartstein explained that in making hiring decisions – especially regarding those with criminal records – employers must take into consideration a number of state and federal laws that are by no means uniform and at times contradictory. For example, Hartstein noted that the “wide range and multiplicity of state laws” governing the hiring of ex-offenders include various workplace notice and posting obligations; limitations on when, during the hiring process, employers may ask applicants about their criminal records; limitations on what records employers may ask applicants about; and restrictions on when employers may rely on criminal records to disqualify applicants from consideration. Hartstein’s written testimony delves into the myriad requirements in a number of states, which, he claims, “clearly demonstrate the challenges faced by employers in addressing compliance-related issues in the pre-employment process involving an applicant’s criminal history.”
Hartstein pointed out that employers must also abide by federal regulations governing the hiring of individuals with criminal records in specific settings, such as financial institutions, the transportation industry, and positions requiring the handling of firearms.
While respecting state and federal hiring laws, Hartstein stated that employers must also be mindful of their 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.” Failing to do so could subject employers to charges of negligent hiring. Hartstein explained in his testimony that “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.”
Hartstein concluded by asking the Commission to retain its current guidelines, which “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,” and 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.”
He further asked that the EEOC “recognize that circumstances arise in which an employer may legitimately disqualify from employment individuals convicted of certain offenses.”
The open discussion is one of a series of such meetings the EEOC has held in recent months to gather information regarding how certain employment practices impact protected groups. In a similar vein to Tuesday’s meeting, the EEOC has held public hearings to consider the use by employers of credit history information (October 2010), the treatment of unemployed job seekers (February 2011), and disparate treatment in 21st century hiring decisions (June 2011).
A complete list of panelists and links to their testimony can be found here.
For more information on this issue and recommendations for employers, see Littler’s ASAP: The EEOC's Priorities Still Include Regulating the Use of Criminal Records by Employers by Rod Fliegel and Barry Hartstein.