|Date: April 26, 2012|
On April 25, the Equal Employment Opportunity Commission (EEOC) approved updated guidance on the use of criminal arrest and conviction records of job applicants and current employees.
At issue is when the consideration of applicant and employee criminal records constitutes discrimination. Under the guidance, which NMHC/NAA are continuing to evaluate, employers still may consider criminal records. But, under the disparate treatment theory, they must do so consistently for all applicants. For example, they may not disqualify an applicant who is a racial minority but hire a similarly qualified white applicant with the same criminal history.
Under the disparate impact theory, the use of criminal information may not disproportionately impact those protected classes unless the employer can establish that the policy is job related and consistent with business necessity, even if the company's practices are applied neutrally.
Importantly, the guidance sets forth detailed legal standards for identifying employer policies and practices and establishing disparate impact, job relatedness and business necessity. Standards for conducting individualized assessments are also more fully developed.
The guidance recognizes that state or local laws may impose restrictions on employment for certain individuals based on their criminal histories, but compliance with those laws will not automatically shield an employer from liability under the federal Civil Rights Act.
The Commission held an open meeting on this issue in July 2011 but adopted last week’s revisions without releasing an actual proposal or providing a formal opportunity for comment. The guidance was expedited before the April 30 retirement of one of the Commissioners would have resulted in a loss of a voting majority for Democrats.
NMHC/NAA have continued to urge the EEOC to refrain from limiting an employer’s ability to conduct neutrally applied criminal background checks that are job related and consistent with business necessity. In an August 2011 letter, we informed the Commission specifically about the apartment industry’s need for continued use of this information to help ensure staff and resident safety.