Using Convictions and Arrests To Make Hiring Decisions

Last week, the EEOC adopted an enforcement guidance on the use of arrest and conviction records in employment decisions. It issued a press release, the guidance document itself, and a question-and-answer document about the guidance. With the guidance in mind, now is a good time for employers to scrutinize how they use such records to make hiring decisions.

The EEOC's concern is that the use of such records may have an disparate impact on those with protected characteristics. As the guidance document explains, "Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites."

Nonetheless, anti-discrimination law recognizes that the wrongful conduct revealed by arrest and conviction records may be sufficiently job-related to justify their use despite a disparate impact. The EEOC says that employers may rely on convictions if (1) data validates the use of convictions for particular offenses as predictors of subsequent work performance, or (2) the employer determines which convictions will be considered by considering the nature of the crime, the time elapsed since the conviction, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

Because they are not proof of wrongdoing, arrest records alone should never be relied upon to make employment decisions. However, the fact of an arrest may prompt the employer to investigate the circumstances of the arrest and conclude that disqualifying misconduct did occur. The guidance documents gives the following example if a proper use of the fact of an arrest:

• Andrew, a Latino man, worked as an assistant principal in Elementary School for several years. After several ten and eleven-year-old girls attending the school accused him of touching them inappropriately on the chest, Andrew was arrested and charged with several counts of endangering the welfare of children and sexual abuse. Elementary School has a policy that requires suspension or termination of any employee who the school believes engaged in conduct that impacts the health or safety of the students. After learning of the accusations, the school immediately places Andrew on unpaid administrative leave pending an investigation. In the course of its investigation, the school provides Andrew a chance to explain the events and circumstances that led to his arrest. Andrew denies the allegations, saying that he may have brushed up against the girls in the crowded hallways or lunchroom, but that he doesn’t really remember the incidents and does not have regular contact with any of the girls. The school also talks with the girls, and several of them recount touching in crowded situations. The school does not find Andrew’s explanation credible. Based on Andrew’s conduct, the school terminates his employment pursuant to its policy.

Other laws bar use of some arrest and conviction records without regard to their discriminatory adverse impact. For example, the Fair Credit Reporting Act bars consumer reporting agencies from reporting records of arrests that did not result in entry of a judgment of conviction, where the arrests occurred more than seven years ago.

In California, arrest records may not be considered at all unless the arrest resulted in a conviction, or the applicant is awaiting trial. Employers may not inquire about marijuana convictions that are more than two years old.  See California Labor Code  sections 432.7, 432.8.