If you’re an employer or nonprofit agency and you are either obligated or striving to avoid employment discrimination, this should interest you. And if you’ve been following the recent EEOC hearings and anticipated policy updates, this bit of news might provide some valuable foreshadowing of what lies ahead.
The EEOC recently wrote an informal letter in response to the Peace Corps’ request for federal agency comment on a proposed Volunteer Application for its international service programs. The EEOC’s response specifically addressed the proposed Volunteer Application through the lens of Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, religion, national origin, or sex.
The Peace Corps’ proposed volunteer application states the following:
About Drug and Alcohol-Related Charges:
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.
About Legal Status and History:
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.
Do you recognize any of that language in any of your own application materials? If so, read on.
First, understand that the EEOC does confirm that pre-employment screening through criminal records does not in itself violate Title VII because Title VII does not regulate inquiries by employers. In question is only HOW an employer chooses to use the criminal record information in its selection process. In a nutshell, criminal records must be used in a manner that is “job related and consistent with business necessity.”
Arrests and Convictions: Beware the Difference
An important distinction made by the EEOC in its letter to the Peace Corps is that the criteria of “job related and consistent with business necessity” are applied differently for a conviction and for an arrest or charge.
The difference between arrest and conviction is a meaningful one:
- An arrest simply indicates that someone has been taken into police custody. Having an arrest record doesn’t necessarily mean a person is guilty of the charge.
- A conviction is a finding of guilt – it is “beyond a reasonable doubt” that the individual actually engaged in the reported offense.
When looking at conviction records the EEOC says, “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.”
Also, instead of asking about all convictions regardless of when they occurred, which may indicate that you’re going to exclude applicants for any conviction, the EEOC questions whether the exclusion is “job related and consistent with business necessity.”
The EEOC recommended to the Peace Corps that the organization narrow its criminal history inquiry to focus on convictions that are:
- Related to the specific positions in question
- Have taken place in the past seven years
- Are consistent with the proposed provisions of the federal government’s general employment application form, OF 306
Arrest records, on the other hand, should be treated differently as they are unreliable indicators of guilt. The EEOC suggests to the Peace Corps that it consider whether its questions about arrests and charges will serve a useful purpose in screening applicants. If so, the EEOC recommends limiting the inquiry to arrests and charges for offenses that are related to the position in question. The EEOC also recommended that the Peace Corps give the applicant a reasonable opportunity to dispute the validity of an arrest record to ensure the organization is relying on accurate information in making its volunteer decisions.
Where does this leave your employment screening program?
If you’re an employer who relies on employment screening and criminal records to make smarter employment-related decisions, the implications are pretty clear. Keep it job-related. Keep it consistent with business necessity. Steer clear of blanket policies. Maintain separate policies for arrest and conviction records.
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