Privacy Issues in the Workplace

In addition, in 2012, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance regarding the consideration of arrest and conviction records in employment decisions. 106 The enforcement guidance reaffirms two uses of criminal history information by employers that may violate Title VII: (1) “disparate treatment”, when the employer treats applicants with the same criminal history differently because of their race, color, religion, sex, or national origin; and (2) “disparate impact”, where even though the employer applies criminal record exclusions uniformly, the exclusions operate to “disproportionately and unjustifiably” exclude people of a particular race or national origin. The employer can overcome a showing of disparate impact by demonstrating that the exclusion is “job related and consistent with business necessity”. 107

The EEOC Enforcement Guidance sets forth two circumstances where an employer may consistently meet the “job related and consistent with business necessity” defense. 108 These are:

 The employer “validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors)”; or  The employer “develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. . . . The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”

The EEOC Enforcement Guidance further advises that: “while Title VII does not require an individualized assessment in all circumstances, the use of a screen that does not include an individualized assessment is more likely to violate Title VII.”109 Thus, we recommend performing an individualized assessment for applicants to determine if the policy as applied is job related and consistent with business necessity. Effective July 1, 2017, the California Department of Fair Employment and Housing (“DFEH”) also revised an existing regulation and adopted a new regulation regarding employers’ use of employees’ and applicants’ criminal history in employment decisions. These new regulations do not override state and federal laws or regulations that prohibit persons with certain convictions from holding particular jobs, or requiring a particular criminal background screening process for them. Instead, they would apply to convictions where a statutory prohibition does not exist. As discussed above, the revisions confirm that employers are prohibited from seeking or requesting the following information when making employment decisions such as hiring, promotion, training, discipline, layoff and termination, regardless of whether there is an adverse impact on a protected class:

 Arrests or detention that did not result in a conviction.

 Referral to or participation in a pretrial to post-trial diversion program.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 35