The United State Equal Employment Opportunity Commission (“EEOC”) issued guidance earlier this year regarding the use of criminal records in employment decision-making. The EEOC has long held that although Title VII does not protect individuals with criminal records as a class, an employer’s reliance on arrest and conviction records in making hiring or retention decisions may result in illegal discrimination based on race and national origin. The guidance comes on the heels of a public settlement with Pepsi for $3.13 million related to the company’s use of a universal policy excluding individuals with criminal records.

The EEOC is responsible for enforcing Title VII, which prohibits employment discrimination based on protected classes. The EEOC’s guidance is rooted in the conclusion that using criminal records to make employment decisions can have a disparate impact against minorities. Statistically, African Americans and Hispanics are arrested and convicted more frequently than Caucasians, and thus, studies have revealed that criminal records have a negative impact on the employability of these groups.

Even if using criminal records has a disparate impact and the plaintiff makes this showing, Title VII shifts the burden of production and persuasion to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). See Griggs v. Duke Power Co., 401 U.S. 424 (1971). However, even if the employer makes this showing, a Title VII plaintiff can still prevail if the plaintiff points out an “alternative employment practice” that meets the goals of the employer as effectively as the challenged practice and has less of a disparate impact. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

The EEOC provides several case illustrations to point out that employers may still use criminal records in employment decisions where it is job-related and consistent with business necessity. For example, in El v. Southeastern Pa. Transp. Auth., 479 F.3d 232 (3d Cir. 2007), the United States Court of Appeals for the Third Circuit found that the position at issue, a bus driver-trainee for disabled persons, involved access to vulnerable adults and required the employer to exercise the utmost care. Accordingly, the termination of an employee after learning of a 40 year old conviction for second degree murder was found to be job-related and consistent with business necessity.

An important distinction in the guidance is records of arrests versus convictions. Clearly, an arrest does not establish that criminal conduct has occurred. There is no proof of criminal conduct in the simple fact of an arrest, and an individual who is charged and prosecuted is presumed innocent unless proven guilty. Accordingly, the EEOC’s position is that arrest records are almost always an impermissible basis for employment decisions. However, if the conduct underlying the arrest makes an individual unfit for a particular job, employers can take these facts into account in making employment decisions.

By contrast, records of convictions usually serve as sufficient evidence that an individual engaged in particular conduct. However, due to potential errors in the records, outdated records, or other reasons, the EEOC recommends that employers not use conviction records in hiring decisions. If the employer makes inquiries about an applicant’s convictions, the EEOC recommends that such inquires be “limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.”

In order for employers to consistently meet this test, the EEOC highlights two possible courses of action. First, the employer can validate the criminal conduct screen for the position in question using the EEOC’s Uniform Guidelines on Employee Selection Procedures, which presents its own challenges. Second, the employer may develop a targeted screen considering at least “the nature of the crime, the time elapsed, and the nature of the job,” and then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity. Not providing an individualized assessment after using a targeted screening would likely constitute a “red flag” for EEOC investigators.

Federal laws and regulations that prohibit certain individuals with certain criminal records from holding particular positions or engaging in certain occupations is a defense to a charge of discrimination. However, state and local laws 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. 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.

Several best practices can be gleaned from the EEOC guidance that employers should embrace. First, avoid asking about criminal convictions on job applications, but if this is unavoidable, ask only about convictions that are related to the job in question and consistent with business necessity. Second, employers cannot deny employment based on arrest records alone, but if the underlying conduct is relevant for employment purposes, the employer may evaluate such conduct as part of its decision. Third, a blanket policy denying employment to all applicants with criminal conviction records violates Title VII, and the EEOC recommends targeted screening processes coupled with individualized assessments. The most burdensome provision in the guidance is the individualized assessment provision, which entails reviewing a number of factors. Fourth, if an alternative employment practice exists that serves the legitimate goals of the employer and results in less of a disparate impact, the employer should use this practice to avoid losing its business necessity defense. Fifth, complying with local law is not a defense if it runs afoul of Title VII. Finally, employers must take precautions to ensure that any criminal information obtained about applicants or employees is kept confidential.