Editor’s note: This is the first in a three-part series focusing on criminal background checks. The second and third installments will be posted Wednesday and Thursday, respectively.
On 25 April 2012, the U.S. Equal Employment Opportunity Commission issued updated guidance on the use of criminal background checks in employment titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The Commission voted 4-1 to approve the updated guidance, which the EEOC indicated it will use to investigate cases of discrimination related to employers’ use of criminal background check policies. Although Title VII of the Civil Rights Act of 1964 does not prohibit the use of criminal background checks, the EEOC cited concerns that employers could use arrest and conviction records to unlawfully discriminate against job applicants based on their race or national origin. In addition to concerns about what the EEOC refers to as the “important issue” of reintegrating criminal offenders who have served their time into the work force, the guidance takes aim at criminal databases that the agency contends contain incomplete criminal records and other mistakes such as mismatching the subject with a report about another person.
The EEOC historically has taken the position that an employer’s policy or practice of excluding individuals from employment because they have criminal conviction records is unlawful under Title VII of the Civil Rights Act of 1964 unless the policy or practice is justified by a business necessity. The EEOC’s position is based on statistics showing that African-Americans and Hispanics are convicted at a rate disproportionately greater than their representation in the population, which, in the EEOC's view, means employment decisions based on criminal conviction records have an adverse impact on African-Americans and Hispanics. “Adverse impact discrimination” is defined as a “substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group.” Because of the potential for disparate impact discrimination, the EEOC guidance rejects a blanket policy or practice in which an employer refuses to hire any applicant with a conviction.
In addition to disparate impact or “systemic” discrimination cases, the EEOC will continue to evaluate the more traditional disparate treatment discrimination cases based on criminal conviction. Disparate treatment discrimination exists when an employer intentionally treats applicants or employees differently based on a protected category, such as race or national origin. This can occur in the context of criminal background check policies if the policy is used to screen minority applicants but not white applicants, or where an exception is made for a white applicant but not for a similarly situated minority applicant.
If a hotel employer’s criminal conviction policy has a disparate impact on minorities, then the policy likely violates Title VII unless the employer can demonstrate that the policy is job related and consistent with business necessity. According to the EEOC, an employer making an employment decision based on a criminal conviction must consider the following three factors to meet this burden: 1) the nature and gravity of the offense(s), 2) the time that has passed since the conviction and/or completion of the sentence, and 3) the nature of the job held or sought.
The EEOC has recently shown renewed interest in background check policies, and employers in the hospitality industry have found themselves the target of some of these systemic investigations. This is all part of the EEOC’s E-RACE (Eradicating Racism and Colorism from Employment) initiative, a program dedicated to strengthening the “EEOC’s efforts to ensure workplaces are free of race and color discrimination.” One of the EEOC’s specific goals for the E-RACE initiative is to develop strategies for addressing “21st Century manifestations of discrimination,” which the EEOC identifies as including arrest and conviction records, as well as other pre-employment hiring practices.
Employers in the hospitality industry regularly conduct criminal background checks on applicants. These potential employees have access to your guests and customers, their personal belongings and often credit card information. Prudent hotels employers use criminal background information to guard against hiring employees with criminal histories that may place your guests in harm’s way. In light of the EEOC’s focus on the use of criminal background checks in hiring decisions, hospitality employers must strike a balance—protecting their guests, customers and employees and maintaining a meaningful and legally defensible criminal background check policy. Look for guidance in the next article on how to structure a legally defensible background check policy.
Disclaimer: The foregoing provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose.
Andria Ryan is a partner in the Atlanta office of Fisher & Philllips, LLP and serves as the chair of the firm's Hospitality Industry Practice Group. She represents employers in virtually every area of employment and labor law and can be reached at 404-240-421 or firstname.lastname@example.org.
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