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/Comments on Similar Proposed State Regulations

April 7, 2016

FEHCouncil@dfeh.ca.gov
Fair Employment and Housing Council
c/o Brian Sperber, Legislative & Regulatory Counsel
Department of Fair Employment and Housing
320 West 4th Street, 10th Floor
Los Angeles, CA 90013

Re: Fair Employment and Housing Council's Proposed Regulations on the Consideration of Criminal History in Employment Decisions

Dear Mr. Sperber:

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) submits this comment in response to the Fair Employment and Housing Council of the Department of Fair Employment and Housing's ("FEHC") proposal to amend section 11017 of, and add section 11010.1 to, Title 2 of the California Code of Regulations ("Proposed Regulation").

The EEOC offers these comments as the agency responsible for enforcing Title VII of the Civil Rights Act of 1964 ("Title VII"). In 2012, the Commission issued EEOC Enforcement Guidance No: N-915.002, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (April 25, 2012), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm (hereinafter, "Guidance," "EEOC Guidance," or "2012 Guidance"). The Guidance builds on longstanding court decisions and previous EEOC guidance regarding employers' use of criminal history in making employment decisions and how that use may violate Title VII. During its hearings on the Proposed Regulation, FEHC indicated its intent to incorporate the EEOC's Guidance into California regulations.

Title VII and Consideration of Criminal Records in Employment Decisions

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 federal law; or (b) employers' reliance on such information to make employment decisions results in the disproportionate exclusion of individuals of a particular race, national origin, or other group protected by federal law and such exclusions are not job related and consistent with business necessity. Further, "[i]f an employer successfully demonstrates that its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory 'alternative employment practice' that serves the employer's legitimate goals as effectively as the challenged practice but that the employer refused to adopt." EEOC Guidance, §V(C).

If a background screen for criminal conduct disproportionately excludes people based on a protected characteristic, an employer may establish that the screen nonetheless is job related and consistent with business necessity by demonstrating either: (1) that it validated the criminal conduct screen for the position(s) at issue, consistent with the Uniform Guidelines on Employee Selection Procedures (UGESP) standards;⁽¹⁾ 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. 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.

Ultimately, as explained in the EEOC Guidance, Title VII requires the employer to 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. The focus is on criminal conduct, typically demonstrated by a conviction. Therefore, the Guidance explains that an applicant should not be excluded based on an arrest alone, although evidence of disqualifying conduct for a particular position may be grounds for exclusion.

EEOC's Recommendations Regarding the FEHC Proposed Regulation. The EEOC offers these comments on the FEHC Proposed Regulation.

1. Additional Criminal History Limitations, Irrespective of Adverse Impact

Section 11017.1(c)(1) of the proposed regulation provides that state or local agency employers are prohibited from asking about criminal history including through an application, until the employer has determined that the applicant meets the minimum employment qualifications as stated in the notice for the position First, we note that this section specifically applies only to state or local agency employers. The rest of the proposed regulation does not appear to be limited to only state or local agency employers.

This provision is consistent with §V(B)(3) of the EEOC Guidance, which states that "[a]s a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications." However, we note that as written, this provision does not address the EEOC Guidance's further recommendation "that, if and when [employers] make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity." Id. FEHC may consider adding this best practice to the Proposed Regulation.

2. Establishing Adverse Impact

Section 11017.1(d) of the proposed regulation provides that, "[a]n adversely affected applicant or employee bears the burden of demonstrating that the policy of considering criminal convictions has an adverse disparate impact on a basis protected by the Act." In Title VII litigation, the plaintiff carries the burdens of production and persuasion to show that criminal convictions had a disparate impact based on a protected characteristic.

However, in EEOC administrative investigations of all discrimination charges, it is the investigator's job to gather information pertinent to the charge, as the charging parties themselves typically lack legal representation. Based on national data reflecting that African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their representation in the general population, the 2012 Guidance recognizes that "[n]ational data … supports a finding that criminal record exclusions have a disparate impact based on race and national origin …[and therefore] provides a basis for the Commission to investigate such Title VII disparate impact charges." EEOC Guidance, §V(A)(2)(emphasis supplied).

With respect to gathering evidence relevant to impact during its administrative investigations, the Guidance also states that:

During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s). For example, an employer may present regional or local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer's particular geographic area. An employer also may use its own applicant data to demonstrate that its policy or practice did not cause a disparate impact. The Commission [also] will assess relevant evidence when making a determination of disparate impact, including applicant flow information maintained pursuant to the Uniform Guidelines on Employee Selection Procedures, workforce data, criminal history background check data, demographic availability statistics, incarceration/conviction data, and/or relevant labor market statistics.

Id.

We recommend that FEHC assess whether, for purposes of its own administrative investigations only, it should follow the EEOC's approach to producing evidence of disparate impact.

3. Establishing Job-Relatedness and Business Necessity/Individualized Assessment

We suggest revising Section 11017.1(e) of the Proposed Regulation to track § V(B)(4) of the EEOC Guidance more closely to reflect the following points:

• If the policy or practice of screening on the basis of criminal convictions creates a disparate impact on applicants or employees on a protected basis under the Act, the burdens of production and persuasion then shift to the employer to demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity.
• The employer must show that its policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.
• An employer will consistently meet the "job related and consistent with business necessity" defense in one of two circumstances:
• First, the employer may demonstrate that it validated the criminal conduct screen for the position at issue, per the UGESP standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
• Second, the employer develops a targeted criminal record screen that is narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question by taking into account, at least, the following factors:

(1) The nature and gravity of the offense or conduct;
(2) The time that has passed since the offense or conduct and/or completion of the sentence; and
(3) The nature of the specific job held or sought.

• The employer should then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.

4. Preemption of Contrary State, City, and Local Laws, Regulations, or Licensing Requirements

Section 11017.1(c)(2) of the Proposed Regulation provides that "employers may also be subject to local laws or city ordinances that provide additional limitations. Section 11017.1(f) provides the "[c]ompliance with [federal or state laws or regulations that impose licensing restrictions or otherwise limit employment opportunities for individuals with criminal records] is a form of job-relatedness, is consistent with business necessity, and constitutes a defense to an adverse impact claim under the Act." This language would protect employers from liability under this new California regulation if they are complying with contrary state, city, local or federal restrictions or licensing requirements for people with criminal records. We would note, however, that this provision applies only to California law; it does not create an affirmative defense to a violation of Title VII.⁽²⁾

Thank you for the opportunity to provide these comments. Should you wish to discuss any of the issues raised in this letter in further detail, please contact Assistant Legal Counsel Carol Miaskoff at 202-663-4645 or Muslima Lewis, Senior Attorney Advisor, at 202-579-6657.

Sincerely,

Peggy R. Mastroianni
Legal Counsel

FOOTNOTES:

1 29 C.F.R. part 1607.

2 "[S]tate and local laws or regulations are preempted by Title VII if they 'purport[] to require or permit the doing of any act which would be an unlawful employment practice' under Title VII." EEOC Guidance, § VII, quoting 42 U.S.C. § 2000e-7.

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