The EEOC was busy this spring, issuing Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 and holding, in the context of a federal employee’s claim before the agency, that the protections afforded by Title VII extend to transgendered persons. While both actions are significant, the Guidance on Conviction Records will present significant challenges to those employers who have historically used such records as part of the applicant screening process, with the extent of its impact yet to be known due to certain unresolved issues.

The New EEOC Guidelines: Expect Heightened Scrutiny of Your Application Process

By way of background, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex or national origin (disparate treatment). Even when an employer uses criminal record exclusions uniformly, its actions may nonetheless disproportionately and unjustifiably exclude people of a particular race or national origin (disparate impact). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

According to the EEOC, the new Enforcement Guidance “consolidates and supersedes” policy statements issued by the agency in 1987 and 1990. This is quite an understatement. While prior policy statements recognized both disparate-treatment and disparate-impact claims, the new Enforcement Guidance essentially recognizes only two circumstances under which an employer can establish that its criminal background inquiry is job related and consistent with business necessity. An employer now has two choices if it wishes to consider conviction records when making employment decisions. It can validate the appropriateness of a criminal screen using the Uniform Guidelines on Employee Selection Procedures—a complex statistical endeavor that is likely to be an impractical option for the average employer. Alternatively, it can develop a “targeted screen” that considers the nature of the crime, the amount of time elapsed since the conduct or conviction at issue, and the nature of the job in question. Employers choosing the latter approach must also provide applicants or employees who may be excluded from an employment opportunity due to a disqualifying conviction record with the opportunity to present mitigating information (for example, demonstrating that the conviction record does not belong to the applicant) with an individualized assessment. While Title VII does not require such an assessment in all circumstances, the EEOC maintains that a screening process that does not utilize such an inquiry is more likely to violate Title VII.

The Guidance serves as a warning to all employers who disqualify candidates on the basis of a criminal conviction, whether the disqualification is automatic once a conviction is discovered or occurs only following a determination that the conviction relates to the position in question. Many employers are now asking themselves whether they should do away altogether with the familiar criminal conviction history questions on their employment applications. Given the hodgepodge of state laws governing use of such questions, it is a step that many national employers may opt to take. Even if an employer is in compliance with the laws in those states in which it operates, the EEOC takes the position that Title VII preempts state law on the subject, so dispensing with the application inquiry is something that smaller employers might consider as well. This does not mean, however, that employers cannot ask about convictions or run criminal background checks (provided all the requirements of the Fair Credit Reporting Act and various state laws are met), but rather that they may choose to wait until later in the application process, perhaps until after the initial screen or once a final slate of candidates has been identified. And when a conviction record is revealed, employers should carefully assess the nature of each position being filled and determine whether the conviction at issue is reasonably related to the particular position, such that it should be a disqualifier.

Now is the time for employers to reassess their criminal background check policies and practices to determine the level of risk they face in light of the new Enforcement Guidance and whether revision is appropriate.

Protecting Transgendered Persons: An Expected Expansion of Title VII

Earlier this year, the EEOC confirmed, after much speculation, that Title VII protects transgendered persons from discrimination. In Macy v. Holder (Bureau of Alcohol, Tobacco, Firearms and Explosives (the Bureau)) (Case No. 0210210821), Macy claimed that she was denied a position with the Bureau because she revealed that she was in the process of transitioning from male to female. Macy filed a discrimination charge based on sex and gender stereotyping, but the Bureau found that her sex discrimination claim was limited to her status as a female and that her gender stereotyping claim fell outside of Title VII’s protections. In reversing the Bureau’s findings, the EEOC held for the first time that “complaint[s] of discrimination based on gender identity, change of sex, and/or transgender status [are] cognizable under Title VII.”

While significant, this ruling is unlikely to change the practices of those employers covered by the Illinois Human Rights Act, as sexual orientation has been a protected characteristic under Illinois law for some time. The decision is likely, however, to influence judicial rulings concerning these types of claims under federal law, specifically Title VII, and whether plaintiffs can proceed on them. Employers should also be prepared for the EEOC’s active acceptance, and possible unilateral investigations, of discrimination claims based on transgendered status.

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