• An employer’s use of criminal history information may violate Title VII in two different ways:  (1) under a disparate treatment theory, where the employer treats persons with similar criminal histories differently based on a protected characteristic, or stereotypes certain persons based on a characteristic; and (2) under a disparate impact theory, where a policy that excludes persons has a disparate impact on a protected group and the employer is unable to establish that the exclusions based on criminal history are job-related and consistent with business necessity.

• If it causes a disparate impact, the EEOC will deem an employer’s policy of excluding everyone who has a criminal record will not be job-related and consistent with business necessity and will therefore be deemed to be unlawful, unless the policy is required by federal law.

• Employers may “consistently” meet the job-related and consistent with business necessity standard in the following two circumstances:  (1) the criminal conduct exclusion has been validated for the position in question under the Uniform Guidelines on Employee Selection Procedures; or (2) the employer develops a “targeted screen” that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then assesses potential exclusions on an individualized basis with reference to facts and/or research.

• Exclusion based on a person’s arrest, in and of itself, will not meet the job-related and consistent with business necessity standard.  However, the conduct underlying the arrest can be considered.

• The Guidance contains a list of “best practices” for employers to follow when making employment decisions based on criminal conduct.

A Wrinkle In Time: The EEOC announced its E-RACE Initiative in February 2007, incorporating its position on the use of criminal convictions in the hiring process. Two weeks later, the Third Circuit Court of Appeals in El v. Southeastern Pennsylvania Transportation Authority (SEPTA) threw employers and the EEOC a curve ball. Among other things, the court rejected the EEOC’s long-standing common sense approach, requiring instead that employers provide “some level of empirical proof” demonstrating that the use of criminal convictions accurately predicts job performance. The court, however, refused to go so far as to prohibit all bright-line policies like SEPTA’s (which excluded hiring drivers with any record of a felony conviction for violence against a person) if the policy actually distinguishes between applicants who pose an unacceptable risk and those who do not. The translation — employers should be prepared to present expert testimony if the plaintiff makes an initial showing of disparate impact. SEPTA presented several experts, including a leading criminologist in defense of its policy.

Full Speed Ahead: The SEPTA decision has generated new interest in the topic at the EEOC (despite the agency’s recent loss in EEOC v. Peoplemark in which it was ordered to pay over $750,000.00 in attorney’s fees because it was unable to secure the necessary expert testimony). It is unclear whether the EEOC will revise its policy guidance to incorporate SEPTA (or other changes), but in recent opinion letters and public meetings, the EEOC has demonstrated an increasing level of distrust of anything but the most narrowly tailored policies, indicating changes to current guidance may not be too far away. At a recent public meeting in July 2011, the Commissioners heard a wide range of testimony on the topic. For example, one witness advocated for adoption of a presumption that any criminal conviction policy has a disparate impact and another questioned the quality of the data employers are relying upon in light of the explosion of on-line background check services. These are just some of the issues the EEOC is grappling with in addition to SEPTA.

The Bottom Line For Employers:

A pre-employment question asking about criminal history does not in and of itself violate Title VII, but be very careful how such information is used and be very wary of broad-based or blanket exclusion policies. It is uncertain whether the EEOC and other courts will adopt the SEPTA holding, however, employers should do some end of year housekeeping and consider conducting a privileged review of their existing policies and procedures concerning criminal convictions, paying special attention to the scope and impact of such policies and reviewing for compliance with state laws on criminal background and credit reporting.

When:  Shortly.  OSHA had said that the Small Business Regulatory Enforcement Fairness Act process for I2P2 would begin in June, but that didn’t happen. In the Chat on July 11, OSHA said that it expected that process to begin “shortly,” and at that time a draft of the I2P2 would be available to the public.

What:  Unknown.  The Chat did not provide any clues on what we can expect I2P2 to look like.  The most we learned was that I2P2 would be an “improved, more systematic approach to managing workplace health and safety.”  In the past, we have been told that I2P2 would contain the following elements:

• Management duties
  • Establish a policy
  • Set goals
  • Plan and allocate resources
  • Assign and communicate roles and responsibilities
• Employee participation
  • Involve employees in establishing, maintaining and evaluating the program
  • Employee access to safety and health information
  • Employee role in incident investigations
• Hazard identification and assessment
• Hazard prevention and control
• Education and training
• Program evaluation and improvement

The Bottom Line for Employers:

OSHA has engaged Eastern Research Group to prepare a Safety and Health Practices Survey to determine how safety is managed in various workplaces.  In the meantime, we will need to pay close attention to this rulemaking and further developments, and will keep you posted.