EEOC Renders Guidance on Use of Arrest and Conviction Records in Employment Decisions
The U.S. Equal Employment Opportunity Commission (the “Commission”), the office which enforces Title VII of the Civil Rights Act of 1964 (“Title VII”), has released guidance this year on the consideration of arrest and conviction records in employment decisions.1 Title VII, as most employers are aware, prohibits employment discrimination based upon race, color, religion, sex, or national origin.
In some instances, an employer’s use of an individual’s arrest record or criminal history in making employment decisions may constitute employment discrimination under Title VII. There are two main ways this can occur. First, if an employer treats criminal information differently for different applicants or employees based upon race, color, religion, sex, or national origin, discrimination may be found based upon disparate treatment. Second, even a neutral employer policy may violate Title VII if it disproportionately impacts individuals protected by Title VII and may be illegal if not related and consistent with a business necessity.
The first means of discrimination can be easily avoided by treating all applicants for similar positions similarly, regardless of race, color, religion, sex, or national origin. The second potential violation can be more difficult to avoid because employers may not be able to readily see the disparate impact of their policies.
The Commission has determined, with respect to potential disparate impacts, that employers can typically avail themselves to the “job related and consistent with business necessity” defense in two ways. First, an employer can confirm the criminal conduct exclusion for a given position based upon the Uniform Guidelines on Employee Selection Procedures, when data or analysis about criminal conduct in relation to subsequent work performance exists. Second, the employer may develop targeted screening that takes into account the nature of the crime, the time elapsed, and the nature of the job. In addition, the employer should provide an opportunity for individualized assessment for those individuals identified by the screen to establish whether the policy, as applied, is both job related and consistent with business necessity.
While compliance with federal laws and/or regulations that conflict with Title VII is a defense to a discrimination charge, state and local laws that conflict with Title VII are preempted.
This message was prepared by Angela L. Gidley, Attorney at Parr Richey Obremskey Frandsen & Patterson LLP. Notices to business law clients of Parr Richey Obremskey Frandsen & Patterson LLP are sent to notify clients of issues broadly affecting businesses across the State of Indiana. Such messages are not an evaluation of the requirements or exemptions relating to any particular business and are not exhaustive of the requirements under the law. If you are unsure of whether your employment policies adhere to or conflict with the guidance established by the U.S. Equal Employment Opportunity Commission and Title VII of the Civil Rights Act of 1964, please contact legal counsel.
1 Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, U.S. Equal Employment Opportunity Commission, Guidance Document No. 915.002 (April 25, 2012).
JAMES A.L. BUDDENBAUM is a partner with the Indianapolis office of Parr Richey Obremskey Frandsen & Patterson, where he concentrates in corporate law, acquisitions, business transactions, utility, real estate, employment, and complex insurance, and other business litigation. 
JEREMY FETTY joined the firm in 2006. Mr. Fetty’s practice focuses on utility law, corporate law, cooperative law, labor and employment law, and creditor's rights law. 
RANDY HOLT Randy Holt practices in the areas of corporate law and governance, electric cooperative law and taxation, corporate formation, mergers and acquisitions, utility law, commercial contracts, real estate transactions, zoning and land use, and employment law. 
PAUL KRUSE graduated cum laude from Indiana University School of Law at Indianapolis in 1981 and has been a partner in the firm since 1984. 
DON MORTON was admitted to practice in 1966 and, following a tour of duty in Vietnam with the U.S. Army, commenced a general practice with emphasis on civil litigation, business law, real estate, and probate. 
TONY PATTERSON has extensive experience representing personal injury victims and wrongful death survivors throughout Indiana and the Midwest. 
CHARLES RITZ has practiced with the firm since 1978, concentrating in the areas of utility law, labor law, employment law, employee benefits, complex litigation, estate planning and estate administration. 
MIKE SCHULTZ concentrates his practice on civil litigation. He routinely handles a wide variety of employment related disputes, representing both business and employees, and is a frequent lecturer on compliance with federal employment laws. 
LARRY WALLACE was the first chairman of Parr Richey Obremskey Frandsen & Patterson's Utility Law Section. He received his law degree from Indiana University and was admitted to the Indiana bar in 1963. His practice is focused on legal issues of particular concern to regulated and unregulated public utilities, including regulatory and governmental relations services, corporate and real estate law. 
