A new guidance issued by the U.S. Equal Employment and Opportunity Commission (EEOC) will require employers to revisit their employment practices and policies regarding the use of criminal background checks. The concern is that in some cases the use of criminal background checks could violate the prohibition against employment discrimination under title VII of the Civil Rights Act of 1964.
On April 25, 2012, the EEOC modified its guidance on criminal background checks. It is highly recommended that providers read the new guidance carefully and seek legal counsel to determine if your policies, procedures, and practices comport with the new guidance.
Among other elements, the new guidance makes a distinction between arrest records and conviction records in the hiring process. Under the new guidance, for example, it is suggested that:
- You can consider an individual’s conviction record but only if the conviction(s) is related to the job under consideration.
- You should not consider an individual’s arrest record.
Further, the new guidance suggests that the job applications filled out by prospective employees should NOT include inquiries about prior convictions and should NOT include any commentary that would discourage someone with a criminal record from applying for a job.
Some of the changes in the new guidance require employers to now consider the nature of a conviction, the nature of the position that the applicant is seeking, time lapse since time of conviction, and other factors when evaluating an applicant. Rejected applicants (with an arrest and conviction record) must also be given an opportunity to demonstrate circumstances, such as character references and other evidence, that they have reformed or changed their ways.
In addition, the guidance allows those who have not applied for a job to file a charge of discrimination with the EEOC if they were discouraged from applying (e.g., by language on the application about a required criminal background check).
Interpreting the new guidance can become more complex for assisted living providers, who are governed by state and local laws that restrict or prohibit employment of individuals with certain criminal histories. Some state laws may be preempted if it is determined by the EEOC that they permit an unlawful employment practice under Title VII of the Civil Rights Act of 1964.
The EEOC’s process for creating this guidance has been widely criticized. The EEOC did not accept comments before the guidance was issued or ask for public input from, say, those employers who serve vulnerable populations such as children, the disabled, or seniors. Thus, the guidance is likely to be challenged in the courts.
Respectfully,
Rick Grimes
