EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Conviction Policy

January 11, 2016

SUBMITTED VIA WWW.REGULATIONS.GOV

Director, Regulation Policy and Management (02REG)
Department of Veterans Affairs
810 Vermont Ave. NW
Room 1068
Washington, DC 20420

Re: RIN 2900-AP06, Ensuring a Safe Environment for Community Residential Care Residents

Dear Sir or Madam:

The U.S. Equal Employment Opportunity Commission (EEOC) submits this comment in response to the request for comments regarding the Department of Veterans Affairs' (VA's) Proposed Rule, Ensuring a Safe Environment for Community Residential Care Residents.⁽¹⁾

As you know, the EEOC enforces the federal laws that prohibit discrimination against applicants and employees on the basis of race, color, religion, sex, national origin, age, disability, and genetic information.⁽²⁾ The laws enforced by EEOC also prohibit retaliation for filing a charge or complaint of employment discrimination, participating in an employment discrimination proceeding, or otherwise opposing such discrimination.⁽³⁾ Further, EEOC coordinates and leads the federal government's efforts to eradicate unlawful workplace discrimination.⁽⁴⁾

This letter relates in particular to the EEOC's commitment to "coordinate with other federal departments and agencies with the goal of maximizing federal regulatory consistency with respect to the use of criminal history information in employment decisions."⁽⁵⁾

As indicated below in greater detail, we recommend that the VA consider revising the proposed rule to avoid potential conflict with Title VII of the Civil Rights Act of 1964, as amended (Title VII). In particular, we recommend that the VA consider revising the provisions regarding the prohibition on community residential care facilities (CRCs) employing individuals with conviction records or negative state registry or licensing authority findings; the definition of "'convicted' of a criminal offense"; and the types of state registry findings that may result in exclusion from employment with CRCs, to avoid potential conflicts with Title VII. The VA's careful consideration of the scope of its criminal conduct ban is important because Title VII does not preempt federally imposed criminal restrictions.⁽⁶⁾ Such conflicts should be kept to a minimum.⁽⁷⁾

According to the VA, the proposed rule will "improve the safety and help prevent the neglect or abuse of veteran residents in CRCs."⁽⁸⁾ We agree that protecting the safety and preventing the neglect or abuse of veterans with disabilities who are unable to live independently is a worthy and important objective. At the same time, however, we are concerned that the proposed rule, as currently written, may conflict with Title VII's equal employment opportunity mandate. As the VA's preamble mentions, the proposed amendments to 38 C.F.R. Part 17 are intended to mirror the rule for State Veterans Homes at 38 C.F.R. § 51.90(c).⁽⁹⁾ Within the last two years, EEOC staff received an inquiry regarding a state-administered veterans home that terminated a long-time employee because a background check revealed that she had pled "no contest" to punching a person in a bar many years prior. As we understand it, the state registry indicated that this offense was not relevant to the employee's position at the veterans home. Nevertheless, the veterans home terminated the employee, allegedly asserting that it was required to do so pursuant to 38 C.F.R. § 51.90(c)(1)(i). The VA's proposed amendment to 38 C.F.R. Part 17 would appear to require a similar result. For the reasons indicated below, we are concerned that such employment decisions could be inconsistent with Title VII.

We offer the following suggestions based on our belief that the VA can accomplish its objective of protecting veteran residents of CRCs from harm while also avoiding any potential conflicts with Title VII.

Title VII and Consideration of Criminal Records

Federal employment discrimination laws do not prohibit employers from requesting and/or obtaining criminal history information about applicants and employees. However, an employer's use of such information to make employment decisions will violate Title VII if: (a) employers treat applicants and/or employees with the same criminal records differently because of their race, national origin, or another characteristic protected by law; or (b) employers' consideration of such information results in the disproportionate exclusion of individuals of a particular race, national origin, or other protected group, and such exclusions are not job related and consistent with business necessity.⁽¹⁰⁾

If a policy or practice concerning a background screen for criminal conduct disproportionately excludes a protected group, an employer may establish that the screen is job related and consistent with business necessity by demonstrating: (1) that it validated the criminal conduct screen for the position(s) at issue, consistent with the Uniform Guidelines on Employee Selection Procedures standards; or (2) that it is a targeted screen that considers at least the nature of the crime, the time that has elapsed since the criminal conduct occurred, and the nature of the specific job(s) in question.⁽¹¹⁾ In addition, the EEOC recommends that the employer provide an individual who is excluded by the screen an opportunity to demonstrate why he or she should not be excluded, and consider any additional information provided by the individual to determine whether an exception is warranted.⁽¹²⁾ Ultimately, the employer must demonstrate that the criminal conduct screen effectively links specific criminal conduct, and its dangers, with the risks inherent in the duties of the position(s) at issue.⁽¹³⁾

Recommendations Regarding Proposed Regulation

Prohibition on Employing Individuals with Conviction Records or Negative State Registry or Licensing Authority Findings

The VA proposes to amend 38 C.F.R. Part 17 to prohibit, among other things, CRCs from employing individuals with certain conviction records or findings in state registries or licensing authorities. Specifically, pursuant to the proposed rule, CRCs would be prohibited from employing individuals who have been convicted by a court of law of abuse, neglect, or mistreatment of individuals; and would be prohibited from employing individuals who have had a finding regarding abuse, neglect, mistreatment of individuals, or misappropriation of property entered into an applicable state registry or with an applicable licensing authority.⁽¹⁴⁾ The proposed rule does not appear to impose any time limits on the convictions or state registry or licensing authority findings that may exclude CRC applicants from consideration.

The prohibition is very broad, applying to a range of offenses over an unspecified and perhaps unlimited time period, with no exceptions or consideration of potentially extenuating factors or circumstances. For example, although the proposed rule does not appear to include a definition of "misappropriation of property," this phrase may encompass a wide variety of misappropriation offenses, including minor thefts that occurred many years prior to an individual's application for employment, or current employment, with a CRC. As a result, as currently drafted, an individual who was convicted of shoplifting candy as a minor would likely be excluded from consideration for employment, even if he had a long and positive work history and references positively attesting to his work ethic and integrity. In such a scenario, the CRC's criminal background screen likely would not be job related and consistent with business necessity, and would be discriminatory if it is shown to have a disparate impact. However, there would be no recourse to remove this discriminatory barrier to hire under Title VII because, again, Title VII does not preempt federally imposed criminal restrictions.⁽¹⁵⁾

To prevent any unintended conflicts with Title VII, we have several suggestions. First, we recommend that the VA consider either specifying a reasonable time limit on the offenses that may or will result in disqualification from employment at CRCs, or requiring CRCs to consider the amount of time that has passed since a conviction or negative state registry or licensing authority finding before excluding applicants from consideration. Determining the appropriate time frame for a prohibition of employment based on a conviction record or state registry or licensing authority finding may depend on the particular facts and circumstances of each case, and the particular position(s) at issue.⁽¹⁶⁾ As currently written, no consideration is required or permitted regarding the amount of time that has elapsed since a conviction or state registry or licensing authority finding. A permanent exclusion from employment based on criminal conduct may not be consistent with Title VII's job related and consistent with business necessity standard.⁽¹⁷⁾

Second, we recommend that the VA permit and advise CRCs to perform individual assessments of persons who are excluded from consideration as a result of a conviction record or negative state registry or licensing authority finding. As currently written, the proposed regulation does not require or permit CRCs to consider any potentially relevant or exculpatory information provided by the applicant or employee. An applicant may, for example, establish that any relevant convictions were subsequently overturned, that he underwent significant rehabilitation efforts, that he performed similar work post-conviction or post-state registry or licensing authority finding without incident, or that he has positive employment and character references who will attest to his commitment to abide by the law and with the CRC's rules and expectations. Allowing CRCs to conduct individualized assessments in these circumstances will enhance the rule's consistency with Title VII's job related and consistent with business necessity standard.⁽¹⁸⁾

Third, we recommend that the VA determine whether it is possible to narrow the offenses referenced in the proposed rule while maintaining the objective of protecting veterans from abuse, neglect, mistreatment, and theft. For example, the VA might consider whether it is possible to narrow or further clarify the types of abuse, neglect, mistreatment of individuals, and misappropriation of property offenses that are most relevant to the duties and/or responsibilities of covered employees. The VA might, for example, consider whether exempting certain types of convictions from the employment prohibition, such as convictions resulting from self-defense in domestic violence situations which occurred many years prior and which have not recurred, would enable CRCs to employ individuals who would not pose harm to veteran residents. Alternatively or in addition, the VA might consider permitting CRCs to consider any extenuating circumstances regarding convictions or state registry or licensing authority findings that may be relevant to the duties and/or responsibilities of the position at issue. Ensuring that the offenses referenced in the rule are as narrowly tailored as possible while still protecting residents, and that extenuating circumstances may be considered, would strengthen the rule's consistency with Title VII.⁽¹⁹⁾

Definition of "'Convicted' of a Criminal Offense"

According to the proposed rule, a conviction of a criminal offense includes: (i) a judgment of conviction entered by a federal, state, or local court, regardless of whether an appeal is pending or whether the conviction "or other record relating to criminal conduct" has been expunged; (ii) a finding of guilt by a federal, state, or local court; (iii) a plea of guilty or nolo contendere that has been accepted by a federal, state, or local court; and (iv) participation in a first offender, deferred adjudication, or "other arrangement or program where judgment of conviction has been withheld."⁽²⁰⁾

We recommend that the VA consider narrowing this definition by excluding expunged convictions and participation in first offender, deferred adjudication, or other arrangements or programs in which a judgment of conviction has not been made. The VA's rule may, however, permit CRCs to consider the conduct and circumstances that resulted in the expungement or the individual's participation in such programs when making employment decisions.⁽²¹⁾ The fact that a conviction has been expunged may call into question the validity of the underlying facts and circumstances of the case. Similarly, participants in first offender, deferred adjudication, or other arrangements or programs in which no judgment of conviction has been made have not been proven guilty of any crime. As a result, applicants or employees with expunged conviction records or records of participation in first offender, deferred adjudication, or other arrangements or programs in which a judgment of conviction has not been made may pose no greater threat to CRC veteran residents than applicants without such conviction or arrangement or program participation records. Accordingly, excluding such applicants may not be job related and consistent with business necessity.

Exclusions Based on State Registry Findings

The proposed rule prohibits CRCs from employing individuals who have a state registry finding for abuse, neglect, mistreatment of individuals, or misappropriation of property.⁽²²⁾ State registries may include information about incidents that did not result in prosecution.⁽²³⁾

We recommend that the VA narrow the prohibition of employment based on state registry findings to findings that resulted in convictions, or, at the very least, prosecution. As currently written, individuals with applicable state registry findings are excluded from employment with CRCs, even if they have not been prosecuted for or found guilty of any crime. These individuals may pose no greater threat to CRC veteran residents than applicants without such state registry findings. Consequently, such exclusions may not be job related and consistent with business necessity.

Thank you for the opportunity to comment on this proposed rule. As indicated above, we support the VA's goal of protecting from harm CRC residents who have served our country, and believe that the VA can achieve this goal while also avoiding any unintended legal conflicts.

Should you wish to discuss these comments, please feel free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579.

Sincerely,

/s/
Peggy R. Mastroianni
Legal Counsel

FOOTNOTES:

1 Ensuring a Safe Environment for Community Residential Care Residents, 80 Fed. Reg. 69,909 (Nov. 12, 2015); RIN 2900-AP06.

2 See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Section 501 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act), 29 U.S.C. § 791; Titles I and V of the Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq.; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.

3 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 29 U.S.C. § 791(g) (incorporating, among other provisions, the anti-retaliation provision of the ADA into the Rehabilitation Act); 29 U.S.C. § 215(a)(3); 42 U.S.C. § 2000ff-6(f).

4 Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (June 30, 1978).

5 EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 VI (2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#VI [hereinafter Arrest and Conviction Guidance].

6 Id. at VI.A.

7 We note that the scope of criminal history bans imposed at the state level also has received scrutiny under state law. See Peake, et al. v. Commonwealth of Pa., __ A.3d __, 2015 WL 9488235 (Pa. Commw. Ct. 2015) (holding that Pennsylvania statute's lifetime prohibition against persons with even one conviction of a list of enumerated crimes from being employed in the care of older adults violated the Pennsylvania constitution).

8 80 Fed. Reg. at 69,909.

9 Id at 69,910.

10 Arrest and Conviction Guidance, supra note 5, at IV - V.

11 Arrest and Conviction Guidance, supra note 5, at V.B.4.

12 Arrest and Conviction Guidance, supra note 5, at V.B.9

13 Arrest and Conviction Guidance, supra note 5, at V.B.4.

14 38 C.F.R. § 17.63(j)(3)(i)(A).

15 Arrest and Conviction Guidance, supra note 5, at VI.A.

16 Arrest and Conviction Guidance, supra note 5, at V.B.6.b.

17 See, e.g., Green v. Mo. Pac. R.R., 523 F.2d 1290, 1298 (8th Cir. 1975)("We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.")

18 Arrest and Conviction Guidance, supra note 5, at V.B.9.

19 Arrest and Conviction Guidance, supra note 5, at V.B.6.a.

20 38 C.F.R. § 17.63(j)(5).

21 Cf. Arrest and Conviction Guidance, supra note 5, at V.B.2.

22 38 C.F.R. § 17.63(j)(3)(i)(A)(2).

23 80 Fed. Reg. at 69,910-11 ("[T]he registry may contain information on incidents that were not forwarded to law enforcement for prosecution.").

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