Arrests, Convictions and Gainful Employment: EEOC Issues New Enforcement Guidance With Sobering Statistics

Volume 11, Issue 4
May 15, 2012

Imagine you are working for a large company for over the last several years and your job performance has always been good.  One day, your company announces that it needs to conduct background checks on all employees for regulatory compliance purposes. No problem, you think, as you have nothing to hide.  Now imagine being summoned to your boss's office and told you are being fired - all because your background check turned up a shoplifting offense that occurred in 1972 - 40 years ago - when you were a teenager.  Sounds unbelievable, right?  Not so in the case of a 58-year old Milwaukee woman, Yolanda Quesada, who was recently terminated from the bank she worked for after her 40-year-old, youthful offense was revealed by an FBI background check.  The press coverage of Ms. Quesada's plight ironically follows the recent issuance of an Enforcement Guidance by the U.S. Equal Employment Opportunity Commission (EEOC) on April 25, 2012 regarding the appropriate consideration to be given by employers to arrest and conviction records in making employment decisions.  See also Questions and Answers About the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Data in Employment Decisions Under Title VII. The EEOC's Guidance begins with a recitation of some sobering statistics regarding the disproportionate number of minority individuals who are arrested and incarcerated when compared to the general population.  Specifically, in 2010, 28% of all arrests were of African-American individuals, despite the fact that this group comprised only about 14% of the general population.  Hispanic individuals were arrested for federal drug charges at a rate of 3 times their proportion of the general population.  Incarceration data shows that while 1 out of every 17 White men can be expected to go to jail at some point during their lifetime, that ratio climbs to 1 in 6 for Hispanic men and 1 in 3 for African-American men.  Thus, as the EEOC Guidance aptly illustrates, employers' use of arrest data in making employment decisions is particularly problematic.  The mere fact that one has been arrested does not establish that any unlawful conduct has occurred.  In our justice system, those who are arrested, charged and even later prosecuted for crimes are presumed innocent until proven guilty.  Thus, a decision disqualifying someone from employment should never be made solely on the basis that the individual has been arrested.  The more relevant inquiry is whether the underlying conduct that prompted the arrest renders the individual unfit for the position.  Employers are already familiar with the requirement under the Americans with Disabilities Act of 1990 (ADA) that disability inquiries must be "job-related and consistent with business necessity."  That same standard, the EEOC asserts, should apply when considering arrest and conviction data pertaining to applicants and employees.  Also akin to the ADA's requirements is the EEOC's recommendation that employers engage in an individualized assessment when considering what action to take, including affording the applicant or employee the opportunity to provide additional information that may serve as an exception to disqualification.  For example, should you hire someone for a delivery driver position who was arrested 1 year ago for DUI?  The arrest itself is of little importance, but the DUI charge may render this applicant unfit for a job in which his primary function is to drive a company vehicle.  What about a DUI arrest occurring 20 years ago? Would the same unfitness concern be present?  Maybe not, as the significant passage of time with a subsequent clean record might alleviate the employer's concern.  Would the same concern arise if the applicant was seeking an office job? Probably not.  This illustration demonstrates how several factors should be evaluated in tandem before making any type of employment decision.  The EEOC's Guidance specifically mentions three (3) factors an employer should consider when evaluating arrest or conviction information: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought . It also suggests that, as a best practice, employers should develop a narrowly tailored policy for screening applicants and employees for criminal conduct.  Within that policy, employers should try to determine what types of offenses will demonstrate unfitness for certain jobs, as well as what time frame for exclusion should apply.  So what does all of this mean to employers?  Simply put, employment screening decisions based on arrest and conviction records need to be carefully tailored rather than on a knee-jerk basis to such information.  Before making any potentially adverse employment decision based on such information, employers must take the time to engage in thoughtful consideration and analysis of all relevant factors in each individual situation, including whether or not the arrests and/or convictions, as well as any contemplated adverse employment action, are job-related and consistent with business necessity.  If you have any questions about the EEOC's recent Enforcement Guidance, please feel free to contact the attorneys of Kamer Zucker Abbott, as we stand ready to assist you.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.