The Equal Employment Opportunity Commission (EEOC) issued a potentially confusing guidance on April 25, 2012 regarding the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.[i] The purpose of this advisory is to summarize the guidance and assess its effect on nursing home facilities, home care organizations, hospice programs, and other health care providers, with fifteen (15) or more employees, that regularly use criminal records checks in employment decisions. While most long term care providers will use the Virginia State Police’s criminal records check process to weed out applicants within thirty (30) days of provisional employment for open positions, providers may not be aware of Federal laws such as Title VII under which the EEOC could second-guess certain decision making.
Absent reliance on non-discriminating policies that are fairly applied as consistent with business necessity, an employer’s use of criminal records in employment decisions may violate Title VII’s prohibition against employment discrimination. There are two applicable tests of violations under Title VII: disparate treatment and disparate impact. When an employer treats criminal history information differently for different applicants, based on their race or national origin, a disparate treatment violation may have occurred. When an employer’s neutral employment policy disproportionately impacts individuals based on race and national origin, a disparate impact violation may have occurred. Long term care providers need to be conscious of both tests in their employment decisions and rely on such grounds in addition to an employee’s criminal record and the State laws prohibiting such employment.
Unlawful disparate treatment that violates Title VII occurs when an employer’s decision to reject a job applicant is based on racial or ethnic stereotypes about criminality rather than the individual’s qualifications for the position. Evidence of disparate treatment includes biased statements, inconsistencies in the hiring process, or statistical evidence that indicates an employer weighs criminal history more heavily against applicants belonging to particular races or national origins. Biased statements include comments made by the employer or a decision maker that are derogatory towards an individual’s race or national origin or statements that express stereotypes about criminality. Examples of inconsistencies in the hiring process include the practice of requesting criminal history more frequently for applicants with certain racial or ethnic backgrounds or allowing whites and not racial minorities the opportunity to explain their criminal record.
Unlawful disparate impact that violates Title VII occurs when an employer’s neutral policy or practice disproportionately screens out individuals of minority racial or ethnic origin groups and the employer fails to demonstrate that the policy is job related for the position and consistent with business necessity.[ii] According to the EEOC guidance, “[a]rrest and incarceration rates are particularly high for African American and Hispanic men” with arrests at a rate 2 to 3 times their proportion of the general population.[iii] Consequently, the use of criminal records checks to exclude workers may have a disparate impact based on race and national origin. An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact, nor does it provide employers with a defense.[iv] Disparate impact occurs when the employer’s policy deprives a disproportionate number of minority applicants from employment opportunities.
If a plaintiff in litigation is able to prove disparate impact, the burden shifts to the employer which must demonstrate that the disparate impact is job related for the position and consistent with business necessity.[v] There are three factors to determine if an employment exclusion is job related to the position and consistent with business necessity: 1) the nature and gravity of the offense or conduct, 2) the time that has passed since the offense or conduct and/or the completion of the sentence, and 3) the nature of the job held or sought. These factors demonstrate whether an employer has “accurately distinguish[ed] between applicants [who] pose an unacceptable level of risk and those [who] do not.”[vi]
Arrests and convictions are viewed differently when determining if an exclusion is job related and consistent with business necessity. Arrest records do not establish that criminal conduct actually occurred. Furthermore, arrest records may be inaccurate, may not show final dispositions, and may still be reported even if they have been expunged or sealed.[vii] Consequently, arrest records alone may not be used to bar an applicant from employment. An employer may, however, make an employment decision based on conduct underlying the arrest if the conduct makes the individual unfit for the position. The conduct, not the arrest, must be the reason for barring employment. Convictions, on the other hand, are sufficient evidence that the conduct occurred.
Federal laws and regulations govern the employment of individuals with specific convictions in certain industries or positions in both the private and public sectors. Title VII does not preempt these federally imposed restrictions. For example, Federal law prohibits nursing home facilities from employing individuals who have been “found guilty of abusing, neglecting, or mistreating” residents or others.[viii] Consequently, a nursing home facility can exclude an applicant for offenses involving abuse, neglect, or mistreatment by relying on federal law. However, if an employer decides to impose an exclusion that goes beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII analysis.
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.[ix] 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. Virginia law prohibiting nursing facilities from employing individuals based on criminal conduct is broader than federal law. Under Virginia law, long term care providers are barred from hiring applicants that have committed enumerated barrier crimes, unless the applicant has only one misdemeanor conviction specified in the law and the offense did not involve abuse or neglect and occurred five or more years ago.[x] These barrier crimes include offenses not involving abuse, neglect, or mistreatment. Consequently, exclusions based on Virginia’s barrier crimes not involving abuse or neglect are preempted by Title VII and applicants could still bring a Title VII claim alleging that their exclusions resulted in disparate impact. If the EEOC found that an exclusion resulted in disparate treatment, the employer would have the burden to prove that exclusion based on barrier crimes is job related and consistent with business necessity.
The EEOC recommends that employers eliminate policies or practices that exclude applicants from employment based on any criminal record, as these policies would tend to have disparate impact and not be narrowly tailored enough to demonstrate that the exclusion is job related to the position and consistent with business necessity. However, such a blanket policy is inconsistent with both Federal regulations and state law governing hiring after an abuse or neglect conviction and with the business necessity of providing a quality environment for residents. As a best practice, employers should develop a narrowly tailored written policy and procedure for screening applicants for criminal conduct. Employers should determine specific offenses that demonstrate unfitness for specific positions. Absent an employee conviction of abuse or neglect or evidence of business necessity (i.e., a prospective employee’s conviction of a barrier crime under State law), the screening process should only exclude individuals from particular positions for specific conduct within a defined time period. Individual assessments allow applicants to explain the conduct and demonstrate reasons why employment exclusion is not necessary. While these individual assessments are not necessary, they allow employers the opportunity to consider more complete information on individual applicants and apply the information as part of a policy that is job related and consistent with business necessity.
As a best practice, long term care employers should advise prospective employees upfront of potential hurdles to employment such as a prospective employee’s conviction of a barrier crime. Employers should refer in policy to barrier crimes as bars to employment based on State law and business necessity. However, employers should wait until late in the selection process to ask about convictions, allowing the employer to more objectively access the relevance of an applicant’s conviction if the employer is already familiar with the applicant’s qualifications for the position. The EEOC further recommends that employers limit inquiries about criminal history to conduct for which exclusion would be job related for the position and consistent with business necessity.
If your organization needs assistance in further interpreting the new guidance or implementing policies recommended by the EEOC, please contact Peter Mellette (firstname.lastname@example.org), Harrison Gibbs (email@example.com), or Nathan Mortier (firstname.lastname@example.org).
[i]Consideration of Arrest and Conviction Records in Employment Decisions
Under Title VII of the Civil Rights Act of 1964, EEOC Enforcement Guidance, No. 915.002, April 25, 2012.
[ii] Griggs v. Duke Power Co., 401 U.S. 424 (1971); 42 U.S.C. § 2000e-2(k)(1)(A)(i).
[iii] Supra note 1.
[iv] Connecticut v. Teal, 457 U.S. 440, 442 (1982).
[v] Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1293 (8th Cir. 1975).
[vi] El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232, 244-45 (3rd Cir. 2007).
[vii] SEARCH, Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information 83 (2005), www.search.org/files/pdf/RNTFCSCJRI.pdf; see also Douglas Belkin, More Job Seekers Scramble to Erase Their Criminal Past, Wall St. J., Nov. 11, 2009, at A1, available at http://online.wsj.com/article/SB125789494126242343.html?KEYWORDS=Douglas+Belkin
[viii] 42 C.F.R. § 483.13(c)(1)(ii).
[ix] 42 U.S.C. § 2000e-7.
[x] Va. Code §§ 32.1-126.01 and 32.1-162.9:1.