Criminal Background Checks: State v. Federal Law in Conflict
State and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII (Federal) if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.
Example A: State Law Exclusion Is Job Related and Consistent with Business Necessity. Elijah, who is African American, applies for a position as an office assistant at Pre-School, which is in a state that imposes criminal record restrictions on school employees. Pre-School, which employs twenty-five full- and part-time employees, uses all of its workers to help with the children. Pre-School performs a background check and learns that Elijah pled guilty to charges of indecent exposure two years ago. After being rejected for the position because of his conviction, Elijah files a Title VII disparate impact charge based on race to challenge Pre-School’s policy. The EEOC conducts an investigation and finds that the policy has a disparate impact and that the exclusion is job related for the position in question and consistent with business necessity because it addresses serious safety risks of employment in a position involving regular contact with children. As a result, the EEOC would not find reasonable cause to believe that discrimination occurred.
Example B: State Law Exclusion Is Not Consistent with Title VII. County Y enforces a law that prohibits all individuals with a criminal conviction from working for it. Chris, an African American man, was convicted of felony welfare fraud fifteen years ago, and has not had subsequent contact with the criminal justice system. Chris applies to County Y for a job as an animal control officer trainee, a position that involves learning how to respond to citizen complaints and handle animals. The County rejects Chris’s application as soon as it learns that he has a felony conviction. Chris files a Title VII charge, and the EEOC investigates, finding disparate impact based on race and also that the exclusionary policy is not job related and consistent with business necessity. The County cannot justify rejecting everyone with any conviction from all jobs. Based on these facts, County Y’s law “purports to require or permit the doing of an act which would be an unlawful employment practice” under Title VII.
Employer Best Practices
The following are examples of best practices for employers who are considering criminal record information when making employment decisions.
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
Developing a Policy
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
Identify essential job requirements and the actual circumstances under which the jobs are performed.
Determine the specific offenses that may demonstrate unfitness for performing such jobs.
Identify the criminal offenses based on all available evidence.
Determine the duration of exclusions for criminal conduct based on all available evidence.
Include an individualized assessment.
Record the justification for the policy and procedures.
Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Note: Do not ask about arrests. An arrest is not a conviction. It is illegal, especially in California, to ask if an applicant has ever been arrested. If you are using a third party administrator to conduct criminal background checks on applicants make sure their paperwork does not ask about arrests. You can still be held liable because you are ultimately making the hiring decision.