By a Biometrica staffer
Employers of all stripes, private corporations, NGOs, public agencies, schools, colleges, hospitals, delivery services, home health care providers, political campaigns, even religious organizations, use background screening reports to make a determination on potential or current employees, contractors, volunteers or candidates for employment or service, including promotion, reassignment, or retention.
So, what exactly are background checks? According to the Consumer Financial Protection Bureau (CFPB), which, along with the Federal Trade Commission (FTC) enforces the Fair Credit Reporting Act (FCRA), “Background screening reports may include many types of information, including credit history, public records from civil court proceedings — such as bankruptcy filings and other court documents — and information related to employment history. They may also include other public record information on arrests and convictions of individuals.”
The FCRA stipulates guidelines for the inclusion and use of criminal history information. Why is all this relevant? When background checks are run by or through a company in the business of compiling background information, including and not limited to criminal background information, the FCRA needs to be complied with. According to federal guidelines under the FCRA, employee background checks are deemed “consumer reports.” The FCRA does not just regulate credit reports — it also incorporates criminal and civil records, civil lawsuits, educational and other reference checks, and any other information obtained by a consumer reporting agency. The FCRA regulates the collection and use of data obtained through these consumer reports and “promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies.”
For instance, take what we do. Because Biometrica’s algorithms amalgamate real-time arrest or conviction data and make that data available to employers for the purposes of their creating pre- and post-employment criminal background reports, Biometrica has to strictly abide by the provisions of the FCRA.
Can Employers Run Background Checks?
Of course. Employers are allowed to run background checks under law. However, anytime an individual’s background information is used to make an employment decision, state laws (that differ vastly) come into play, along with federal laws that protect applicants and employees from discrimination. Compliance includes making sure there is no discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). What does this mean? It means you cannot check criminal background for certain employees only, and everyone is entitled to be treated equally under the law. These laws are enforced by the Equal Employment Opportunity Commission (EEOC).
Do note that while the EEOC has no direct relevance to the use of criminal records in employment-related decisions, it enforces Title VII of the Civil Rights Act, which is what prohibits employment discrimination based on race, color, religion, sex, or national origin. According to the EEOC, “Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin.”
What About Guidelines On Arrests?
Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act states the following: “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
This basically means that although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes. If, after an internal investigation, the applicant or employee is determined to have appeared to have done whatever he was arrested for and that conduct is job-related, adverse action would generally be justified.
In their “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act,” the EEOC provides an interesting example of an employer inquiry into the “Conduct Underlying Arrest” and whether it constitutes a violation of Title VII.
“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.”
What happens next? “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.”
The EEOC guidance continues: “Andrew challenges the policy as discriminatory under Title VII. He asserts that it has a disparate impact based on national origin and that his employer may not suspend or terminate him based solely on an arrest without a conviction because he is innocent until proven guilty. After confirming that an arrest policy would have a disparate impact based on national origin, the EEOC concludes that no discrimination occurred. The school’s policy is linked to conduct that is relevant to the particular jobs at issue, and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest. The Commission finds no reasonable cause to believe Title VII was violated.”
On a conviction though, the EEOC is clearer: “A conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.”
What Is Disparate Impact?
Disparate impact and disparate treatment are both inequitable practices in employment, practices that lead to an adverse impact on an individual or group. Disparate impact is, typically, unintentional — there is no deliberate or planned policy that led to the disparate impact. Remember the part we had mentioned about being careful not to discriminate by checking criminal backgrounds only certain employees and not all? When an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (something called disparate treatment liability), it is considered a violation of EEOC guidelines.
Further, the EEOC states: “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”
Note: Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
Basically, under EEOC guidelines, arrest records by themselves cannot be used to exclude persons from employment. For instance, if you have the bad luck to have been arrested for not having a fishing license (yes, you do need fishing licenses in many states and could be arrested for fishing without one!), you could reasonably expect that the arrest will not be related to job function unless you’re a wildlife inspector or a park ranger or something similar. However, conduct that appears to point to someone being unsuitable to hold a certain role, like Andrew in the above example, is a basis for exclusion. An arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.
What Are Employer Best Practices?
The EEOC guidelines focus on what they call their “Green Factors” — from a 1975 case called Green v. Missouri Pacific Railroad Company — for employers to use to make a determination on how specific criminal conduct may be linked to particular positions. The three Green factors are:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct and/or completion of the sentence; and
- The nature of the job held or sought.
The EEOC has also given us some examples of best practices for employers who consider criminal record information when making employment decisions of any kind. These include:
- Eliminating policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Written Policies On Employee Arrest or Conviction
Whether or not you expect to have an employee arrested any time in the near future, it probably makes sense to develop a written policy for when an employee is arrested. This helps you take action for non-compliance with the policy. For instance, you could mandate that every employee needs to self-report an arrest to their supervisor and be prepared to face an internal investigation. If someone doesn’t comply, it could be grounds for dismissal.
Biometrica is a technology company that creates software and systems with the intention of minimizing criminality. It has the country’s largest searchable, private, multi-jurisdictional, 100% law enforcement-sourced database of real-time arrests. Please note that Biometrica is FCRA compliant and an associate member of the PBSA.