Criminals Are Not a Protected Class
Criminals Aren’t a Protected Class
So Why Does the EEOC Have a Policy on the Consideration of Arrest and Conviction Records in Employment Decisions?
Over the past several decades, federal laws have been created to protect certain classes of individuals from discrimination. These protections are codified in laws such as the Equal Pay Act, the Civil Rights Act, the Americans with Disabilities Act, and others. Groups of individuals who share the characteristics of one of these protected categories are referred to as protected classes. The Equal Employment Opportunity Commission is the federal agency which enforces these various laws as it relates to employment and employment-related decisions.
However, despite a growing interest in addressing the status of individuals with past convictions, federal law has not designated individuals with a criminal history as a protected class.
Nonetheless, beginning in the 1970s, the EEOC has consistently approached employers’ use of criminal histories when making employment decisions as a Title VII issue. Over that same period, state and local governments have taken a growing interest in employers use of criminal histories, too.
In 2012, the EEOC consolidated and replaced all its previous policy statements regarding this issue with a document titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. This document outlines the EEOC’s position and instructs employers on the best practices for considering criminal records when making employment decisions. Many state and local entities have used the procedures outlined in the EEOC guidance as a starting point for drafting their own laws and policies.
But perhaps you are wondering if criminals aren’t a protected class, why are the EEOC and other government entities creating policies to address the use of criminal histories when making employment decisions?
The foundation for the EEOC’s interest in the use of criminal history background checks by employers in Part I and Part II of the 2012 Guidance, the Introduction and Background sections, the EEOC explains the history of and basis for its creation of the document.
The following is a summary of three key points noted by the EEOC in the Introduction and Background sections of the Guidance:
- Employers have a continuing interest in considering criminal history information to prevent employee theft and fraud, protect against workplace violence, and avoid liability for negligent hiring. In some instances, federal, state or local laws or regulations require the use of criminal history background checks
- Employers and consumer reporting agencies are able to access criminal history records from various sources. However, this information is sometimes incomplete, inaccurate, or out of date. In other cases, information that has been expunged or deleted from the public record–and therefore off-limits to potential employers–remains available on private databases.
- Statistics indicate that an increasing percentage of working-age Americans have had some interaction with the criminal justice system. A 2010 study found that about one in fifteen U.S. adults had a felony conviction record. Further, the arrest and incarceration rates for African American and Hispanic men are “2 to 3 times their proportion of the general population.” One in three African American males between the ages of 18 and 64 had been incarcerated at some point during their lifetime.
When and why Title VII applies to an employer’s consideration of criminal histories
Because the EEOC’s policy relates only to Title VII claims, an employer’s consideration of criminal histories does not fall within the EEOC’s jurisdiction unless it impacts a member of one of the Title VII protected classes.
“It is the Commission’s position that an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics”.
This position sets the stage for an Equal Employment Opportunity investigation whenever conviction records are used to deny employment.
The EEOC’s position is not an absolute, however. This same 1987 policy statement leaves open the possibility that regional or local data may disprove the adverse impact presumption. Additionally, this finding of an adverse impact is just one factor in deciding whether an employment-related civil rights violation has occurred. Some critics believe that the EEOC Guidance overreaches and limits employers’ ability to make good hiring decisions. And it is possible the Guidance may change.
In the meantime, by following the best practices set forth in the Guidance, employers can implement a criminal history background policy that stands up to EEOC scrutiny.Contact Us Today