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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

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:  Criminal Records; Comment on Peace Corps Volunteer Application

 

September 7, 2011

 

Peace Corps
1111 20th Street, NW
Washington, D.C. 20526

Attention: ____.    

 

                                                                                    Re: Comments on Peace Corps                                                                                                           Volunteer Application

Dear ____:

 

This responds to the Peace Corps’ request for comments under the Paperwork Reduction Act (PRA) about the proposed Volunteer Application form for its international service programs.  See 76 Federal Register 40755 (July 11, 2011).  Under the PRA, the Peace Corps invites comments on a variety of questions, including whether the Volunteer Application is necessary for proper performance of the functions of the agency and whether the information will have practical use. Id. at 40756.

 

The Equal Employment Opportunity Commission (Commission or EEOC) offers these comments as the federal agency enforcing the equal employment opportunity (EEO) laws for the federal and private sectors, with a particular focus on Title VII of the Civil Rights Act as amended (Title VII).  Title VII prohibits employment discrimination on the basis of race, color, religion, national origin, or sex.[1]  Although Peace Corp volunteers are not generally considered to be employees, the Peace Corp prohibits discrimination against them and has established a complaint procedure for addressing discrimination complaints.[2]   The Peace Corps cites to Title VII and EEOC regulations interpreting Title VII to explain what "illegal discrimination" is under its procedures. [3]  Therefore, we call your attention to the following sections of the Volunteer Application, which implicate Title VII:

 

Section IV.  Peace Corps Drug and Alcohol Policy, p. 4 (emphasis supplied)

 

Applicants with any drug-related charge/arrest or conviction in their legal history are not eligible to have their application considered for Peace Corps service until one year has passed from the date of the arrest, or conviction, whichever is later.  Applicants charged with, or convicted of, public intoxication, DUI, DWI, or who receive a reduced charge of, or conviction for reckless driving from an initial charge of DUI or DWI, or who have a similar alcohol related offense in their legal history, are not eligible to have their application considered for Peace Corps service until one year has passed from the date of the offense or conviction, whichever is later.  This includes arrests and citations.  
 

Section 10B.  Legal Status and History, p. 11 (emphasis supplied).

 

All Peace Corps invitees must undergo a National Agency Check (NAC) background investigation to help determine legal eligibility for service. The NAC investigation will reveal all arrests regardless of disposition (i.e., suspended sentence, deferred judgment, dismissal, not guilty, reduced charge, mistaken identity, or expungement), therefore it is required that you disclose to the Peace Corps your official legal history and other experiences. The NAC form and fingerprint charts will be provided at a later date.

 

The Volunteer Application then also requests the following additional information concerning applicants' criminal history:

 

Page 11(emphasis supplied)

 

1.                  Have you ever been arrested for, charged with, or convicted of any offense(s) related to alcohol or drugs?

 

2.         Have you ever been found guilty of an offense under section 404 of the Controlled Substance Act (21 U.S.C. 844), while under the age of 21?

 

Page 12 (emphasis supplied)

 

1.         Have you ever been charged or convicted of any felony offense?

 

2.         Are there currently any charges or probation pending against you for any criminal offense? 

 

3.         Have you ever been been subject to a court martial or other disciplinary proceeding under the Uniform Code of Military Justice?

 

4.         Have you ever been arrested for, or charged with, or convicted of any offense(s) not listed in questions 1 and 2 in the previous section and/or questions 1-3 above?  (Exclude traffic fines less than $200 unless the violation was alcohol and/or drug related).   

 

EEOC Comments

 

            The EEOC recognizes that the Peace Corps must select volunteers who will not pose an unacceptable risk of harm to the communities in which they will serve, and that the Peace Corps needs relevant information with which to make this assessment.  We assume that the information sought on the Volunteer Application is used to screen applicants.

 

            A pre-employment inquiry concerning criminal records does not in itself violate Title VII because Title VII does not regulate inquiries by employers.  However, an employer’s use of criminal record information in its selection process may violate Title VII in certain circumstances.  Thus, an employer must not use criminal history information to engage in unlawful disparate treatment (e.g., excluding African American applicants with certain criminal charges while accepting White applicants with the same charges). Moreover, because disproportionate numbers of African Americans and Hispanics are arrested and convicted, the use of conviction and arrest records to make employment decisions is likely to have a substantial disparate impact on those groups.  Where there is such an impact, an employer must not use criminal history information in a manner that is not job related and consistent with business necessity.[4]  As set forth below, the standard of “job related and consistent with business necessity” is applied differently for a conviction and for an arrest or charge.

 

A.         Conviction Records

 

Excluding individuals from employment because they have arrest or conviction records may disproportionately exclude African-Americans and Hispanics, thereby creating a disparate impact.  Accordingly, the Peace Corps should ensure that its criminal history policies and practices are “job related and consistent with business necessity.”[5] For exclusions based on convictions, the legal standard is that the criminal conduct is recent enough and sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.[6]

 

            The Peace Corps Volunteer Application asks about all convictions regardless of when they occurred.  If this means that the Peace Corps is prepared to exclude applicants for any conviction, whenever it occurred and whatever it involved (even a conviction for a minor offense), we question whether the exclusion is “job related and consistent with business necessity.”  To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that the Peace Corps narrow its criminal history inquiry to focus on convictions that are related to the specific positions in question, and that have taken place in the past seven years, consistent with the proposed provisions of the federal government’s general employment application form, OF 306.[7] 

 

            B.         Arrest Records

 

Arrest records, by their nature, should be treated differently from conviction records.[8]  A conviction record will usually serve as a sufficient indication that a person engaged in the reported offense because the criminal justice system requires the highest degree of proof for a conviction (“beyond a reasonable doubt”).[9]   However, arrest records are unreliable indicators of guilt for several reasons.  First, an arrest record is not persuasive evidence that the person engaged in the conduct alleged.[10]  Individuals are presumed innocent until proven guilty in a court of law, and, ultimately, a prosecutor may decide not to press charges or may dismiss the charges after they have been filed, if the circumstances surrounding the arrest do not warrant formal charges.[11]  Second, there is evidence that some state criminal record repositories fail to report the final disposition of arrests, which means that an applicant’s criminal history information may be incomplete and may not reflect that his arrest charges have been modified or dropped.[12]  Finally, arrest records may be inaccurate due to a variety of other factors including confusion regarding names and personal identifying information, misspellings, clerical errors, or because the individual provided inaccurate information at the time of arrest.[13] 

 

The Peace Corps may wish to consider whether its questions about arrests and charges will serve a useful purpose in screening applicants.[14]  If the Peace Corps decides that there is a need for such questions, we recommend limiting the inquiry to arrests and charges for offenses that are related to the position in question.  We also recommend that the Peace Corps give the applicant a reasonable opportunity to dispute the validity of an arrest record to ensure that the Peace Corps is relying on accurate information in making its volunteer decisions. 

 

Thank you for the opportunity to provide these comments in response to the Peace Corps Volunteer Application.  If you have any questions or would like to discuss these comments, please feel free to contact me at (202) 663-4609, or Carol Miaskoff, Assistant Legal Counsel, at (202) 663-4645. 

                                                                                               

                                                                                                Sincerely,                                                                                                                                                       

 

                                                                                                Peggy R. Mastroianni

                                                                                                Legal Counsel

 

[1]           Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.  See generally E.O. 12067 (requiring EEO coordination and making EEOC the lead agency for enforcement of EEO statutes).

 

[2]           Peace Corp’s, Volunteer Discrimination Complaint Procedure, 45 CFR § 1225.2 (Policy), provides:

 

It is the policy of Peace Corps and ACTION to provide equal opportunity in all its programs for all persons and to prohibit discrimination based on race, color, national origin, religion, age, sex, handicap or political affiliation, in the recruitment, selection, placement, service, and termination of Peace Corps and ACTION Volunteers.

 

[3]           45 CFR § 1225.3(c).

[4]           See EEOC Compl. Man. No. N-915, Section 15: “Race & Color Discrimination” (Apr. 19, 2006); EEOC Policy Guidance No. N-915-061, “Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII” (Sept. 7, 1990); EEOC Policy Guidance No. N-915, “Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964” (Feb. 4, 1987) [hereinafter “Conviction Records”].

 

[5]           See supra note 4 (EEOC guidance).

 

[6]           See Conviction Records, supra note 4.

 

[7]           See 75 Fed. Reg. 67145, 67146 (Nov. 1, 2010) (the Office of Personnel Management recently proposed limiting the scope of the collection of conviction, imprisonment, probation, parole, and military court-martial history information in OF-306 to the past seven years rather than the past ten years to align the form “with the collection of information on investigative questionnaires which generate collection of local law enforcement records.”). 

 

[8]           See Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (a “record of arrests without convictions, is irrelevant to [an applicant’s] suitability or qualification for employment”), modified on other grounds, 472 F.2d 631 (9th Cir. 1972).

 

[9]           See Clark v. Arizona, 548 U.S. 735, 766 (2006) (“The first presumption [in a criminal case] is that a defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense charged. . . .”).

 

[10]          See Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 241 (1957) (“The mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct.”); Dozier v. Chupka, 395 F. Supp. 836, 850 n.10 (S.D. Ohio 1975) (holding that the use of arrest records was too crude a predictor of an employee’s predilection for theft where there were no procedural safeguards to prevent reliance on unwarranted arrests). 

 

[11]          See 63C Am. Jur. 2d Prosecuting Attorneys § 19; 21 Am. Jur. 2d Criminal Law § 715.

 

[12]          See, e.g., U.S. Dep’t of Justice, The Attorney General’s Report on Criminal History Background Checks 17 (2006), available at https://rccd.nv.gov/uploadedFiles/gsdnvgov/content/Resources/ag_bgchecks_report.pdf (reporting that in 2006, only 50% of arrest records in the Federal Bureau of Investigation’s national system of automated criminal information were associated with a final disposition for the arrest).

 

[13]          See Interstate Identification Name Check Efficacy: Report of the National Task Force to the U.S. Attorney General, NCJ 179358, 21-22  (Sacramento: SEARCH Group, Inc., July 1999), available at www.search.org/files/pdf/III_Name_Check.pdf (concluding that so-called “name check” background checks based on an individual’s name and other personal identifying information such as sex, race, date of birth, and Social Security number are known to produce inaccurate results “because none of this information is unique to particular individuals. . . .”  The inaccuracies may also result from “misspellings, clerical errors or intentionally inaccurate identification information provided by search subjects who wish to avoid discovery of their prior criminal activities.”).

 

[14]             We also question whether criminal records that have been expunged are probative. Expungement is a legal process by which an arrest or conviction is erased from a person's criminal record as if it never happened and, in many cases, an individual is permitted by law to deny the existence of the expunged criminal record. See Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 Fordham Urb. L.J. 1501, 1509 - 10 (2003) (Twenty-nine of the forty states that allow expungement/sealing of arrest records permit the subject of the record to deny its existence if asked about it on employment applications or similar forms.  Thirteen of the sixteen states that allow the expungement/sealing of adult conviction records permit the subject of the record to deny its existence under similar circumstances.).

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