“Innocent until proven guilty” is the cornerstone of our criminal justice system. Our courts have spent a lot of time defining what constitutes proof, but the basic point is clear.
The same principle applies to the difference between arrest records and convictions as applied to employment decisions under EEOC guidance: “The fact that an individual was arrested is not proof that he engaged in criminal conduct.” Therefore, an employer may not use an arrest record by itself as the reason to deny employment to an applicant or take adverse action against an employee.
The complicating factor is that the EEOC acknowledges that an arrest may be used in an investigation for an employment decision under certain circumstances. The fact that a person was arrested is a legitimate part of his or her criminal history and under some circumstances the arrest may provide grounds for exclusion that are fair and not discriminatory. Employers need to know when and how to use arrest records in employment.
Measuring the Person for the Job
Most discussions about the EEOC’s guidance on the use of arrest and conviction records focus on convictions. A conviction is like the period at the end of a sentence: the subject is closed, and the statement contains a conclusion on the record you can use in further actions.
What we see over and over again is that excluding someone based on criminal history has to meet the test that the criminal activity is “job related for the position in question and consistent with business necessity.”
It’s easier to see this when there is a conviction for a specific crime because we can draw connections between the crime and the specific job’s duties to determine if the person’s history indicates he or she is a risk in that job. In this process, we use the Green Factors that include (1) the nature and gravity of the offense; (2) the time that has passed since the conviction or conduct; and (3) the nature of the job held or sought.
But when the EEOC guidance talks about criminal history, it includes both arrest and conviction records. In elaborating about what an employer has to do to show that the decision to exclude an applicant based on his or her criminal background is job related and a business necessity, it emphasizes the factual nature of the inquiry, quoting from the court rulings that the inquiry should “measure the person for the job and not the person in the abstract.”
According to the Third Circuit court in El v. Southeastern Pennsylvania Transportation Authority, this process is a risk analysis. Your job as an employer is to determine if the applicant poses more of a risk because of the criminal history than other applicants might.
In other words, the EEOC suggests that individual factors that can be shown to be relevant to the job in question can be used to exclude an applicant. This includes arrest records.
Using Arrest Records in an Employment Inquiry
The key to using arrest records in employment decisions is the “conduct underlying the arrest.” For specific jobs, an employer may have policies or requirements that would exclude applicants or employees for certain behaviors. The use of an arrest record requires showing that there is a factual basis connecting the underlying behavior that triggered the arrest with the employment policies at stake, and that the policies are job related and a business necessity.
When a person is arrested, he or she will be charged with a certain crime. The employer’s investigation would aim to determine if the underlying conduct in question would make the applicant or employee a substantially greater risk in that specific job than another person would be. The investigation would have to make a good faith effort to validate and corroborate the circumstances of the allegations.
We recommend using arrest records very carefully, if at all. Arrests are not conclusions in and of themselves. By their nature, using arrests requires the employer to make decisions based on observable factors about an individual’s behavior without having a court judgment to back it up.
Have questions about your use of criminal records in the hiring process? We can help. Request a consultation with a Proforma Screening Solutions expert. Also, check out our latest infographic, “The Employer’s Dilemma: Job Applicants with Criminal Records.”