The EEOC's Priorities Still Include Regulating The Use Of Criminal Records By Employers

On Tuesday, July 26, 2011, the Equal Employment Opportunity Commission (EEOC) held its latest meeting on the topic of protections for job applicants with arrest and conviction records under Title VII of the Civil Rights Act of 1964. The full Commission heard remarks from the panelists related to three areas: "Best Practices From Employers," "An Overview of Local, State and Federal Programs and Policies" and "Legal Standards Governing Employers' Consideration of Criminal Arrest and Conviction Records."

Although for the past few years the EEOC has renewed its focus on the hiring process, including Title VII protections for ex-offenders, the current Commissioners (Jaqueline Berrien, Stuart Ishimaru, Constance Barker, Chai Feldblum and Victoria Lipnic) have not indicated whether the EEOC will update its 1987 Policy Statement on the Issue of Conviction Records under Title VII, and did not do so at the July 26 meeting. As a result, it remains important for employers who may be the target of disparate impact claims or charges challenging their conviction-based screening policies to: (1) understand the current state of the case law; and (2) continue to closely monitor developments at the federal, state and local levels in this dynamic area of the law.

Backdrop for the July 26 Meeting

In the past few years, the EEOC has reaffirmed its long-standing position that, upon a showing of disparate impact, employers must be able to justify their conviction-based screening policies under Title VII's business necessity standard. The EEOC also has been focusing on the hiring process as part of its "E-RACE initiative."1 In November 2008, the EEOC conducted a meeting on Title VII protections for job applicants with a criminal record and heard testimony from criminologists and stakeholders. More recent EEOC proceedings have included meetings: (1) regarding the use by employers of credit history information (October 2010); (2) to examine the treatment of unemployed job seekers (February 2011); (3) and regarding disparate treatment in 21st century hiring decisions (June 2011). The EEOC also is currently prosecuting a disparate impact lawsuit against at least one employer based on its conviction-based screening policy, and has initiated dozens of "systemic discrimination" investigations.2

The EEOC's interest in Title VII protections for job applicants with a criminal record was sparked at least in part by the Third Circuit Court of Appeals' opinion in El v. South...