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: Criminal History & U.S. Census Bureau's Hiring Practices

June 17, 2011

Department of Commerce
14th and Constitution Avenue, NW
Room 6616
Washington, D.C. 20230

Also sent via electronic mail to dHynek@doc.gov

Re: PRA Notice for BC-170, Census Employment Inquiry

Dear Ms. Hynek:

The Equal Employment Opportunity Commission (Commission or EEOC) offers the following comments in response to the Department of Commerce, U.S. Census Bureau's (the Census Bureau), Paperwork Reduction Act notice for form BC-170, titled Census Employment Inquiry (BC-170). This form is "used to collect information such as personal data and work experience from job applicants."¹

The EEOC offers these comments from the perspective of 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), which prohibits discrimination on the basis of race, color, religion, national origin, or sex.² The Census Bureau's use of the information obtained from BC-170 directly impacts hiring and retention, and it is one basis by which to judge the federal government's role as a model EEO employer. Therefore, we call your attention to the relevant sections of the form, as set forth below.

The current version of the BC-170 provides the following warning to applicants about the Census Bureau's application process in the background information about the form:

If you have had a conviction of a violation of the law since age 18 for something other than a minor traffic violation it could be a basis for nonselection.³

Then, in Section F, question 28, it asks applicants the following:

During the last 10 years, have you been convicted, been imprisoned, been on probation, or been on parole? (Includes, firearms or explosives violations, misdemeanors, and all other offenses. If "YES," use item 32 to provide the date, explanation of the violation, place of occurrence, and the name and address of the police department or court involved.)

The quoted language suggests that the Census Bureau's screening methods may be overbroad. An applicant can be excluded from Census jobs for any convictions, including misdemeanors that have occurred since age 18. While the EEOC recognizes that the Census Bureau must select job applicants who will not pose an unacceptable risk of harm to the communities in which they will serve, it must do so in a way that does not run afoul of Title VII.⁴

A pre-employment inquiry does not in itself violate Title VII because Title VII does not regulate inquiries by employers. However, an employer's use of requested pre-employment information may amount to unlawful employment discrimination under Title VII. Thus, a covered employer must not use such information to engage in unlawful disparate treatment or, in a manner that has a disparate impact and is not job related and consistent with business necessity.

Excluding individuals from employment because they have conviction records may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby creating a disparate impact. Accordingly, the Census Bureau needs to show that its exclusionary policies or 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 If the Census Bureau is excluding individuals who "have had a[ny] conviction . . . since age 18 for something other than a minor traffic violation," however, it is highly doubtful that its screening methods will meet the job related and consistent with business necessity standard.

To ensure that applicants' criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that the Census Bureau narrow its criminal history inquiry so that it focuses on convictions that are related to the specific positions in question, and that have taken place in the past seven years, consistent with the federal government's general employment application form, OF 306.⁷ Additionally, the EEOC recommends that the Census Bureau educate and provide training to the relevant hiring officials about how to assess suitability for the particular positions in question when evaluating applicants' conviction records.⁸

We hope that these comments are helpful. Please feel free to contact Assistant Legal Counsel Carol Miaskoff at 202.663.4645 if you wish to discuss them further.

Sincerely,

/s
Peggy R. Mastroianni
Legal Counsel

Footnoes

¹ Fed. Reg. 22864 (April 25, 2011). Applicants completing form BC-170 are applying, for example, for temporary jobs in office and field positions (clerks, enumerators, crew leaders, supervisors). Id. Applicants complete the BC-170 during the application process at the time of their scheduled employment test (or they may print out and complete the form prior to the testing session, and then bring it with them to their scheduled test). Id. See also BC-170D.

² See generally E.O. 12067 (requiring EEO coordination and making EEOC the lead agency).

³ See Form BC-170D, p.1, ¶ 7.

⁴ See El v. SEPTA, 479 F.3d 232, 245 (3d Cir. 2007) (concluding that Title VII requires criminal record screening policies to "accurately distinguish between applicants that pose an unacceptable level of risk and those that do not").

⁵ 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"].

⁶ See Conviction Records, supra note 5.

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 5 C.F.R. § 731.202 (b)(2) (citing criminal conduct as a factor in determining whether an individual is suitable for Federal employment).

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