State of Texas v. EEOC et al

Filing 1

COMPLAINT against Jacqueline Berrien, EEOC filed by Texas (State of). (Filer fee note- Clerk to add prior fee payment info here.) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership (Attachments: # 1 Exhibit(s) EEOC Enforcement Guidance, # 2 Cover Sheet) (Mitchell, Jonathan)

EXHIBIT A

EEOC Enforcement Guidance

Number
915.002
Date
4/25/2012

1.

SUBJECT: Enforcement Guidance on the Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq.

2.

PURPOSE: The purpose of this Enforcement Guidance is to consolidate and update the
U.S. Equal Employment Opportunity Commission’s guidance documents regarding the
use of arrest or conviction records in employment decisions under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

3.

EFFECTIVE DATE: Upon receipt.

4.

EXPIRATION DATE: This Notice will remain in effect until rescinded or superseded.

5.

ORIGINATOR: Office of Legal Counsel.

Consideration of Arrest and Conviction Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964
Table of Contents
I.

Summary

1

II.

Introduction

3

III.

Background

4

A.
B.
C.

4
6

Criminal History Records
Employers’ Use of Criminal History Information
The EEOC’s Interest in Employers’ Use of Criminal Records in
Employment Screening

6

IV.

Disparate Treatment Discrimination and Criminal Records

6

V.

Disparate Impact Discrimination and Criminal Records

8

A.

B.

C.

Determining Disparate Impact of Policies or Practices that Screen
Individuals Based on Records of Criminal Conduct
1.
Identifying the Practice or Policy
2.
Determining Disparate Impact
Job Related for the Position in Question and Consistent with
Business Necessity
1.
Generally
2.
Arrests
3.
Convictions
4.
Determining Whether a Criminal Conduct Exclusion Is Job
Related and Consistent with Business Necessity
5.
Validation
6.
Detailed Discussion of the Green Factors and Criminal
Conduct Screens
a. The Nature and Gravity of the Offense or Conduct
b. The Time that Has Passed Since the Offense, Conduct
and/or Completion of the Sentence
c. The Nature of the Job Held or Sought
7. Examples of Criminal Conduct Exclusions that Do Not Consider
the Green Factors
8. Targeted Exclusions that Are Guided by the Green Factors
9. Individualized Assessment
Less Discriminatory Alternatives

9
9
9
10
10
12
13
14
14
15
15
15
16
16
17
18
20

VI.

Positions Subject to Federal Prohibitions or Restrictions on Individuals
with Records of Certain Criminal Conduct
A.
B.
C.
D.
E.

VII.

VIII.

Hiring in Certain Industries
Obtaining Occupational Licenses
Waiving or Appealing Federally Imposed Occupational
Restrictions
Security Clearances
Working for the Federal Government

20
20
21
21
23
23

Positions Subject to State and Local Prohibitions or Restrictions on Individuals
with Records of Certain Criminal Conduct

24

Employer Best Practices

25

I.

Summary
•

An employer’s use of an individual’s criminal history in making employment
decisions may, in some instances, violate the prohibition against employment
discrimination under Title VII of the Civil Rights Act of 1964, as amended.

•

The Guidance builds on longstanding court decisions and existing guidance
documents that the U.S. Equal Employment Opportunity Commission (Commission
or EEOC) issued over twenty years ago.

•

The Guidance focuses on employment discrimination based on race and national
origin. The Introduction provides information about criminal records, employer
practices, and Title VII.

•

The Guidance discusses the differences between arrest and conviction records.
•

•

•

The fact of an arrest does not establish that criminal conduct has occurred, and an
exclusion based on an arrest, in itself, is not job related and consistent with
business necessity. However, an employer may make an employment decision
based on the conduct underlying an arrest if the conduct makes the individual
unfit for the position in question.
In contrast, a conviction record will usually serve as sufficient evidence that a
person engaged in particular conduct. In certain circumstances, however, there
may be reasons for an employer not to rely on the conviction record alone when
making an employment decision.

The Guidance discusses disparate treatment and disparate impact analysis under Title
VII.
•

A violation may occur when an employer treats criminal history information
differently for different applicants or employees, based on their race or national
origin (disparate treatment liability).

•

An employer’s neutral policy (e.g., excluding applicants from employment based
on certain criminal conduct) may disproportionately impact some individuals
protected under Title VII, and may violate the law if not job related and
consistent with business necessity (disparate impact liability).
o National data supports a finding that criminal record exclusions have a
disparate impact based on race and national origin. The national data
provides a basis for the Commission to investigate Title VII disparate
impact charges challenging criminal record exclusions.

1

o Two circumstances in which the Commission believes employers will
consistently meet the “job related and consistent with business necessity”
defense are as follows:
•

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
three factors identified by the court in Green v. Missouri Pacific
Railroad, 549 F.2d 1158 (8th Cir. 1977)). 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. (Although Title
VII does not require individualized assessment in all circumstances,
the use of a screen that does not include individualized assessment is
more likely to violate Title VII.).

•

Compliance with other federal laws and/or regulations that conflict with Title VII
is a defense to a charge of discrimination under Title VII.

•

State 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. 42 U.S.C. § 2000e-7.

•

The Guidance concludes with best practices for employers.

2

II.

Introduction

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits
employment discrimination based on race, color, religion, sex, or national origin. 1 This
Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful
discrimination in employment screening, for hiring or retention, by entities covered by Title VII,
including private employers as well as federal, state, and local governments. 2
In the last twenty years, there has been a significant increase in the number of Americans
who have had contact 3 with the criminal justice system 4 and, concomitantly, a major increase in
the number of people with criminal records in the working-age population. 5 In 1991, only 1.8%
of the adult population had served time in prison. 6 After ten years, in 2001, the percentage rose
to 2.7% (1 in 37 adults). 7 By the end of 2007, 3.2% of all adults in the United States (1 in every
31) were under some form of correctional control involving probation, parole, prison, or jail. 8
The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if
incarceration rates do not decrease, approximately 6.6% of all persons born in the United States
in 2001 will serve time in state or federal prison during their lifetimes. 9
Arrest and incarceration rates are particularly high for African American and Hispanic
men. 10 African Americans and Hispanics 11 are arrested at a rate that is 2 to 3 times their
proportion of the general population. 12 Assuming that current incarceration rates remain
unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; 13
by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American
men. 14
The Commission, which has enforced Title VII since it became effective in 1965, has
well-established guidance applying Title VII principles to employers’ use of criminal records to
screen for employment. 15 This Enforcement Guidance builds on longstanding court decisions
and policy documents that were issued over twenty years ago. In light of employers’ increased
access to criminal history information, case law analyzing Title VII requirements for criminal
record exclusions, and other developments, 16 the Commission has decided to update and
consolidate in this document all of its prior policy statements about Title VII and the use of
criminal records in employment decisions. Thus, this Enforcement Guidance will supersede the
Commission’s previous policy statements on this issue.
The Commission intends this document for use by employers considering the use of
criminal records in their selection and retention processes; by individuals who suspect that they
have been denied jobs or promotions, or have been discharged because of their criminal records;
and by EEOC staff who are investigating discrimination charges involving the use of criminal
records in employment decisions.

3

III.

Background

The contextual framework for the Title VII analysis in this Enforcement Guidance
includes how criminal record information is collected and recorded, why employers use criminal
records, and the EEOC’s interest in such criminal record screening.
A.

Criminal History Records

Criminal history information can be obtained from a wide variety of sources including,
but not limited to, the following:
•

Court Records. Courthouses maintain records relating to criminal charges and
convictions, including arraignments, trials, pleas, and other dispositions.17
Searching county courthouse records typically provides the most complete
criminal history. 18 Many county courthouse records must be retrieved on-site,19
but some courthouses offer their records online. 20 Information about federal
crimes such as interstate drug trafficking, financial fraud, bank robbery, and
crimes against the government may be found online in federal court records by
searching the federal courts’ Public Access to Court Electronic Records or Case
Management/Electronic Case Files. 21

•

Law Enforcement and Corrections Agency Records. Law enforcement agencies
such as state police agencies and corrections agencies may allow the public to
access their records, including records of complaints, investigations, arrests,
indictments, and periods of incarceration, probation, and parole. 22 Each agency
may differ with respect to how and where the records may be searched, and
whether they are indexed. 23

•

Registries or Watch Lists. Some government entities maintain publicly available
lists of individuals who have been convicted of, or are suspected of having
committed, a certain type of crime. Examples of such lists include state and
federal sex offender registries and lists of individuals with outstanding warrants. 24

•

State Criminal Record Repositories. Most states maintain their own centralized
repositories of criminal records, which include records that are submitted by most
or all of their criminal justice agencies, including their county courthouses. 25
States differ with respect to the types of records included in the repository, 26 the
completeness of the records, 27 the frequency with which they are updated, 28 and
whether they permit the public to search the records by name, by fingerprint, or
both. 29 Some states permit employers (or third-parties acting on their behalf) to
access these records, often for a fee. 30 Others limit access to certain types of
records, 31 and still others deny access altogether. 32

•

The Interstate Identification Index (III). The Federal Bureau of Investigation
(FBI) maintains the most comprehensive collection of criminal records in the
nation, called the “Interstate Identification Index” (III). The III database compiles

4

records from each of the state repositories, as well as records from federal and
international criminal justice agencies. 33
The FBI’s III database may be accessed for employment purposes by:
•

the federal government; 34

•

employers in certain industries that are regulated by the federal
government, such as “the banking, nursing home, securities, nuclear
energy, and private security guard industries; as well as required security
screenings by federal agencies of airport workers, HAZMAT truck drivers
and other transportation workers”; 35 and

•

employers in certain industries “that the state has sought to regulate, such
as persons employed as civil servants, day care, school, or nursing home
workers, taxi drivers, private security guards, or members of regulated
professions.” 36

Recent studies have found that a significant number of state and federal criminal record
databases include incomplete criminal records.
 A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal
history record repositories still had not recorded the final dispositions for a
significant number of arrests. 37
 A 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI’s
III database were associated with a final disposition. 38
Additionally, reports have documented that criminal records may be inaccurate.
 One report found that even if public access to criminal records has been restricted
by a court order to seal and/or expunge such records, this does not guarantee that
private companies also will purge the information from their systems or that the
event will be erased from media archives. 39
 Another report found that criminal background checks may produce inaccurate
results because criminal records may lack “unique” information or because of
“misspellings, clerical errors or intentionally inaccurate identification information
provided by search subjects who wish to avoid discovery of their prior criminal
activities.” 40
Employers performing background checks to screen applicants or employees may attempt
to search these governmental sources themselves or conduct a simple Internet search, but they
often rely on third-party background screening businesses. 41 Businesses that sell criminal
history information to employers are “consumer reporting agencies” (CRAs) 42 if they provide the
information in “consumer reports” 43 under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq. (FCRA). Under FCRA, a CRA generally may not report records of arrests that did not result
in entry of a judgment of conviction, where the arrests occurred more than seven years ago. 44

5

However, they may report convictions indefinitely. 45
CRAs often maintain their own proprietary databases that compile information from
various sources, such as those described above, depending on the extent to which the business
has purchased or otherwise obtained access to data. 46 Such databases vary with respect to the
geographic area covered, the type of information included (e.g., information about arrests,
convictions, prison terms, or specialized information for a subset of employers such as
information about workplace theft or shoplifting cases for retail employers 47), the sources of
information used (e.g., county databases, law enforcement agency records, sex offender
registries), and the frequency with which they are updated. They also may be missing certain
types of disposition information, such as updated convictions, sealing or expungement orders, or
orders for entry into a diversion program. 48
B.

Employers’ Use of Criminal History Information

In one survey, a total of 92% of responding employers stated that they subjected all or
some of their job candidates to criminal background checks. 49 Employers have reported that
their use of criminal history information is related to ongoing efforts to combat theft and fraud,50
as well as heightened concerns about workplace violence 51 and potential liability for negligent
hiring. 52 Employers also cite federal laws as well as state and local laws 53 as reasons for using
criminal background checks.
C.

The EEOC’s Interest in Employers’ Use of Criminal Records in Employment
Screening

The EEOC enforces Title VII, which prohibits employment discrimination based on race,
color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis
in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny
employment violates Title VII depends on whether it is part of a claim of employment
discrimination based on race, color, religion, sex, or national origin. Title VII liability for
employment discrimination is determined using two analytic frameworks: “disparate treatment”
and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is
discussed in Section V.
IV.

Disparate Treatment Discrimination and Criminal Records

A covered employer is liable for violating Title VII when the plaintiff demonstrates that it
treated him differently because of his race, national origin, or another protected basis. 54 For
example, there is Title VII disparate treatment liability where the evidence shows that a covered
employer rejected an African American applicant based on his criminal record but hired a
similarly situated White applicant with a comparable criminal record. 55
Example 1: Disparate Treatment Based on Race. John, who is White,
and Robert, who is African American, are both recent graduates of State
University. They have similar educational backgrounds, skills, and work
experience. They each pled guilty to charges of possessing and

6

distributing marijuana as high school students, and neither of them had
any subsequent contact with the criminal justice system.
After college, they both apply for employment with Office Jobs, Inc.,
which, after short intake interviews, obtains their consent to conduct a
background check. Based on the outcome of the background check, which
reveals their drug convictions, an Office Jobs, Inc., representative decides
not to refer Robert for a follow-up interview. The representative remarked
to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug
dealer types” to client companies. However, the same representative
refers John for an interview, asserting that John’s youth at the time of the
conviction and his subsequent lack of contact with the criminal justice
system make the conviction unimportant. Office Jobs, Inc., has treated
John and Robert differently based on race, in violation of Title VII.
Title VII prohibits “not only decisions driven by racial [or ethnic] animosity, but also
decisions infected by stereotyped thinking . . . .” 56 Thus, an employer’s decision to reject a job
applicant based on racial or ethnic stereotypes about criminality—rather than qualifications and
suitability for the position—is unlawful disparate treatment that violates Title VII. 57
Example 2: Disparate Treatment Based on National Origin. Tad, who
is White, and Nelson, who is Latino, are both recent high school graduates
with grade point averages above 4.0 and college plans. While Nelson has
successfully worked full-time for a landscaping company during the
summers, Tad only held occasional lawn-mowing and camp-counselor
jobs. In an interview for a research job with Meaningful and Paid
Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at
age 16 for accessing his school’s computer system over the course of
several months without authorization and changing his classmates’ grades.
Nelson, in an interview with MPII, emphasizes his successful prior work
experience, from which he has good references, but also discloses that, at
age 16, he pled guilty to breaking and entering into his high school as part
of a class prank that caused little damage to school property. Neither Tad
nor Nelson had subsequent contact with the criminal justice system.
The hiring manager at MPII invites Tad for a second interview, despite his
record of criminal conduct. However, the same hiring manager sends
Nelson a rejection notice, saying to a colleague that Nelson is only
qualified to do manual labor and, moreover, that he has a criminal record.
In light of the evidence showing that Nelson’s and Tad’s educational
backgrounds are similar, that Nelson’s work experience is more extensive,
and that Tad’s criminal conduct is more indicative of untrustworthiness,
MPII has failed to state a legitimate, nondiscriminatory reason for
rejecting Nelson. If Nelson filed a Title VII charge alleging disparate
treatment based on national origin and the EEOC’s investigation

7

confirmed these facts, the EEOC would find reasonable cause to believe
that discrimination occurred.
There are several kinds of evidence that may be used to establish that race, national
origin, or other protected characteristics motivated an employer’s use of criminal
records in a selection decision, including, but not limited to:
•

•

Inconsistencies in the hiring process. Evidence that the employer requested
criminal history information more often for individuals with certain racial or
ethnic backgrounds, or gave Whites but not racial minorities the opportunity to
explain their criminal history, would support a showing of disparate treatment.

•

Similarly situated comparators (individuals who are similar to the charging party
in relevant respects, except for membership in the protected group). Comparators
may include people in similar positions, former employees, and people chosen for
a position over the charging party. The fact that a charging party was treated
differently than individuals who are not in the charging party’s protected group
by, for example, being subjected to more or different criminal background checks
or to different standards for evaluating criminal history, would be evidence of
disparate treatment.

•

Employment testing. Matched-pair testing may reveal that candidates are being
treated differently because of a protected status. 58

•

V.

Biased statements. Comments by the employer or decisionmaker that are
derogatory with respect to the charging party’s protected group, or that express
group-related stereotypes about criminality, might be evidence that such biases
affected the evaluation of the applicant’s or employee’s criminal record.

Statistical evidence. Statistical analysis derived from an examination of the
employer’s applicant data, workforce data, and/or third party criminal background
history data may help to determine if the employer counts criminal history
information more heavily against members of a protected group.
Disparate Impact Discrimination and Criminal Records

A covered employer is liable for violating Title VII when the plaintiff demonstrates that
the employer’s neutral policy or practice has the effect of disproportionately screening out a Title
VII-protected group and the employer fails to demonstrate that the policy or practice is job
related for the position in question and consistent with business necessity. 59
In its 1971 Griggs v. Duke Power Company decision, the Supreme Court first recognized
that Title VII permits disparate impact claims. 60 The Griggs Court explained that “[Title VII]
proscribes . . . practices that are fair in form, but discriminatory in operation. The touchstone is
business necessity. If an employment practice which operates to exclude [African Americans]
cannot be shown to be related to job performance, the practice is prohibited.” 61 In 1991,

8

Congress amended Title VII to codify this analysis of discrimination and its burdens of proof.62
Title VII, as amended, states:
An unlawful employment practice based on disparate impact is established . . . if a
complaining party demonstrates that an employer uses a particular employment
practice that causes a disparate impact on the basis of race, color, religion, sex, or
national origin and the respondent fails to demonstrate that the challenged
practice is job related for the position in question and consistent with business
necessity. . . . 63
With respect to criminal records, there is Title VII disparate impact liability where the
evidence shows that a covered employer’s criminal record screening policy or practice
disproportionately screens out a Title VII-protected group and the employer does not
demonstrate that the policy or practice is job related for the positions in question and consistent
with business necessity.
A.

Determining Disparate Impact of Policies or Practices that Screen
Individuals Based on Records of Criminal Conduct
1.

Identifying the Policy or Practice

The first step in disparate impact analysis is to identify the particular policy or practice
that causes the unlawful disparate impact. For criminal conduct exclusions, relevant information
includes the text of the policy or practice, associated documentation, and information about how
the policy or practice was actually implemented. More specifically, such information also
includes which offenses or classes of offenses were reported to the employer (e.g., all felonies,
all drug offenses); whether convictions (including sealed and/or expunged convictions), arrests,
charges, or other criminal incidents were reported; how far back in time the reports reached (e.g.,
the last five, ten, or twenty years); and the jobs for which the criminal background screening was
conducted. 64 Training or guidance documents used by the employer also are relevant, because
they may specify which types of criminal history information to gather for particular jobs, how to
gather the data, and how to evaluate the information after it is obtained.
2.

Determining Disparate Impact

Nationally, African Americans and Hispanics are arrested in numbers disproportionate to
their representation in the general population. In 2010, 28% of all arrests were of African
Americans, 65 even though African Americans only comprised approximately 14% of the general
population. 66 In 2008, Hispanics were arrested for federal drug charges at a rate of
approximately three times their proportion of the general population. 67 Moreover, African
Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced
for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites. 68
African Americans and Hispanics also are incarcerated at rates disproportionate to their
numbers in the general population. Based on national incarceration data, the U.S. Department of
Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.)

9

is expected to go to prison at some point during his lifetime, assuming that current incarceration
rates remain unchanged. 69 This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. 70 For African
American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). 71 Based on a stateby-state examination of incarceration rates in 2005, African Americans were incarcerated at a
rate 5.6 times higher than Whites, 72 and 7 states had a Black-to-White ratio of incarceration that
was 10 to1. 73 In 2010, Black men had an imprisonment rate that was nearly 7 times higher than
White men and almost 3 times higher than Hispanic men. 74
National data, such as that cited above, supports a finding that criminal record exclusions
have a disparate impact based on race and national origin. The national data provides a basis for
the Commission to further investigate such Title VII disparate impact charges. 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 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, 75 workforce
data, criminal history background check data, demographic availability statistics,
incarceration/conviction data, and/or relevant labor market statistics. 76
An employer’s evidence of a racially balanced workforce will not be enough to disprove
disparate impact. In Connecticut v. Teal, the Supreme Court held that a “bottom line” racial
balance in the workforce does not preclude employees from establishing a prima facie case of
disparate impact; nor does it provide employers with a defense. 77 The issue is whether the policy
or practice deprives a disproportionate number of Title VII-protected individuals of employment
opportunities. 78
Finally, in determining disparate impact, the Commission will assess the probative value
of an employer’s applicant data. As the Supreme Court stated in Dothard v. Rawlinson, an
employer’s “application process might itself not adequately reflect the actual potential applicant
pool since otherwise qualified people might be discouraged from applying” because of an
alleged discriminatory policy or practice. 79 Therefore, the Commission will closely consider
whether an employer has a reputation in the community for excluding individuals with criminal
records. Relevant evidence may come from ex-offender employment programs, individual
testimony, employer statements, evidence of employer recruitment practices, or publicly posted
notices, among other sources. 80 The Commission will determine the persuasiveness of such
evidence on a case-by-case basis.
B.

Job Related For the Position in Question and Consistent with Business
Necessity
1.

Generally

After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of

10

production and persuasion to the employer to “demonstrate that the challenged practice is job
related for the position in question and consistent with business necessity.” 81 In the legislative
history of the 1991 Civil Rights Act, Congress referred to Griggs and its progeny such as
Albemarle Paper Company v. Moody 82 and Dothard 83 to explain how this standard should be
construed. 84 The Griggs Court stated that the employer’s burden was to show that the policy or
practice is one that “bear[s] a demonstrable relationship to successful performance of the jobs for
which it was used” and “measures the person for the job and not the person in the abstract.” 85 In
both Albemarle 86 and Dothard, 87 the Court emphasized the factual nature of the business
necessity inquiry. The Court further stated in Dothard that the terms of the exclusionary policy
must “be shown to be necessary to safe and efficient job performance.” 88
In a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v.
Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an
employer to “follow[] the policy of disqualifying for employment any applicant with a
conviction for any crime other than a minor traffic offense.” 89 The Eighth Circuit identified
three factors (the “Green factors”) that were relevant to assessing whether an exclusion is job
related for the position in question and consistent with business necessity:
•
•
•

The nature and gravity of the offense or conduct; 90
The time that has passed since the offense or conduct and/or
completion of the sentence; 91 and
The nature of the job held or sought. 92

In 2007, the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority93
developed the statutory analysis in greater depth. Douglas El challenged SEPTA’s policy of
excluding everyone ever convicted of a violent crime from the job of paratransit driver. 94 El, a
55 year-old African American paratransit driver-trainee, was terminated from employment when
SEPTA learned of his conviction for second-degree murder 40 years earlier; the conviction
involved a gang fight when he was 15 years old and was his only disqualifying offense under
SEPTA’s policy. 95 The Third Circuit expressed “reservations” about a policy such as SEPTA’s
(exclusion for all violent crimes, no matter how long ago they were committed) “in the
abstract.” 96
Applying Supreme Court precedent, the El court observed that some level of risk is
inevitable in all hiring, and that, “[i]n a broad sense, hiring policies . . . ultimately concern the
management of risk.” 97 Recognizing that assessing such risk is at the heart of criminal record
exclusions, the Third Circuit concluded that Title VII requires employers to justify criminal
record exclusions by demonstrating that they “accurately distinguish between applicants [who]
pose an unacceptable level of risk and those [who] do not.” 98
The Third Circuit affirmed summary judgment for SEPTA, but stated that the outcome of
the case might have been different if Mr. El had, “for example, hired an expert who testified that
there is a time at which a former criminal is no longer any more likely to recidivate than the
average person, . . . [so] there would be a factual question for the jury to resolve.” 99 The Third
Circuit reasoned, however, that the recidivism evidence presented by SEPTA’s experts, in

11

conjunction with the nature of the position at issue—paratransit driver-trainee with unsupervised
access to vulnerable adults—required the employer to exercise the utmost care. 100
In the subsections below, the Commission discusses considerations that are relevant to
assessing whether criminal record exclusion policies or practices are job related and consistent
with business necessity. First, we emphasize that arrests and convictions are treated differently.
2.

Arrests

The fact of an arrest does not establish that criminal conduct has occurred. 101 Arrests are
not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are
dismissed. 102 Even if an individual is charged and subsequently prosecuted, he is presumed
innocent unless proven guilty. 103
An arrest, however, may in some circumstances trigger an inquiry into whether the
conduct underlying the arrest justifies an adverse employment action. Title VII calls for a factbased analysis to determine if an exclusionary policy or practice is job related and consistent
with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related
and consistent with business necessity.
Another reason for employers not to rely on arrest records is that they may not report the
final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted). As documented in
Section III.A., supra, the DOJ/BJS reported that many arrest records in the FBI’s III database
and state criminal record repositories are not associated with final dispositions. 104 Arrest records
also may include inaccuracies or may continue to be reported even if expunged or sealed. 105
Example 3: Arrest Record Is Not Grounds for Exclusion. Mervin and
Karen, a middle-aged African American couple, are driving to church in a
predominantly white town. An officer stops them and interrogates them
about their destination. When Mervin becomes annoyed and comments
that his offense is simply “driving while Black,” the officer arrests him for
disorderly conduct. The prosecutor decides not to file charges against
Mervin, but the arrest remains in the police department’s database and is
reported in a background check when Mervin applies with his employer of
fifteen years for a promotion to an executive position. The employer’s
practice is to deny such promotions to individuals with arrest records, even
without a conviction, because it views an arrest record as an indicator of
untrustworthiness and irresponsibility. If Mervin filed a Title VII charge
based on these facts, and disparate impact based on race were established,
the EEOC would find reasonable cause to believe that his employer
violated Title VII.
Although an arrest record standing alone may not be used to deny an employment
opportunity, an employer may make an employment decision based on the conduct underlying
the arrest if the conduct makes the individual unfit for the position in question. The conduct, not
the arrest, is relevant for employment purposes.

12

Example 4: Employer's Inquiry into Conduct Underlying Arrest.
Andrew, a Latino man, worked as an assistant principal in Elementary
School for several years. After several ten and eleven-year-old girls
attending the school accused him of touching them inappropriately on the
chest, Andrew was arrested and charged with several counts of
endangering the welfare of children and sexual abuse. Elementary School
has a policy that requires suspension or termination of any employee who
the school believes engaged in conduct that impacts the health or safety of
the students. After learning of the accusations, the school immediately
places Andrew on unpaid administrative leave pending an investigation.
In the course of its investigation, the school provides Andrew a chance to
explain the events and circumstances that led to his arrest. Andrew denies
the allegations, saying that he may have brushed up against the girls in the
crowded hallways or lunchroom, but that he doesn’t really remember the
incidents and does not have regular contact with any of the girls. The
school also talks with the girls, and several of them recount touching in
crowded situations. The school does not find Andrew’s explanation
credible. Based on Andrew’s conduct, the school terminates his
employment pursuant to its policy.
Andrew challenges the policy as discriminatory under Title VII. He
asserts that it has a disparate impact based on national origin and that his
employer may not suspend or terminate him based solely on an arrest
without a conviction because he is innocent until proven guilty. After
confirming that an arrest policy would have a disparate impact based on
national origin, the EEOC concludes that no discrimination occurred. The
school’s policy is linked to conduct that is relevant to the particular jobs at
issue, and the exclusion is made based on descriptions of the underlying
conduct, not the fact of the arrest. The Commission finds no reasonable
cause to believe Title VII was violated.
3.

Convictions

By contrast, a record of a conviction will usually serve as sufficient evidence that a
person engaged in particular conduct, given the procedural safeguards associated with trials and
guilty pleas. 106 However, there may be evidence of an error in the record, an outdated record, or
another reason for not relying on the evidence of a conviction. For example, a database may
continue to report a conviction that was later expunged, or may continue to report as a felony an
offense that was subsequently downgraded to a misdemeanor. 107
Some states require employers to wait until late in the selection process to ask about
convictions. 108 The policy rationale is that an employer is more likely to objectively assess the
relevance of an applicant’s conviction if it becomes known when the employer is already
knowledgeable about the applicant’s qualifications and experience. 109 As a best practice, and
consistent with applicable laws, 110 the Commission recommends that employers not ask about

13

convictions on job applications and that, if and when they 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.
4.

Determining Whether a Criminal Conduct Exclusion Is Job Related
and Consistent with Business Necessity

To establish that a criminal conduct exclusion that has a disparate impact is job related
and consistent with business necessity under Title VII, the employer needs to show that the
policy operates to effectively link specific criminal conduct, and its dangers, with the risks
inherent in the duties of a particular position.
Two circumstances in which the Commission believes employers will consistently meet
the “job related and consistent with business necessity” defense are as follows:
o The employer validates the criminal conduct screen for the position in question per
the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines)
standards (if data about criminal conduct as related to subsequent work performance
is available and such validation is possible); 111 or
o The employer develops a targeted screen considering at least the nature of the crime,
the time elapsed, and the nature of the job (the three Green factors), and then provides
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. See Section V.B.9, infra (examples of relevant considerations in
individualized assessments).
Depending on the facts and circumstances, an employer may be able to justify a targeted
criminal records screen solely under the Green factors. Such a screen would need to be narrowly
tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.
Title VII thus does not necessarily require individualized assessment in all circumstances.
However, the use of individualized assessments can help employers avoid Title VII liability by
allowing them to consider more complete information on individual applicants or employees, as
part of a policy that is job related and consistent with business necessity.
5.

Validation

The Uniform Guidelines describe three different approaches to validating employment
screens. 112 However, they recognize that “[t]here are circumstances in which a user cannot or

14

need not utilize” formal validation techniques and that in such circumstances an employer
“should utilize selection procedures which are as job related as possible and which will minimize
or eliminate adverse impact as set forth [in the following subsections].” 113 Although there may
be social science studies that assess whether convictions are linked to future behaviors, traits, or
conduct with workplace ramifications, 114 and thereby provide a framework for validating some
employment exclusions, such studies are rare at the time of this drafting.
6.

Detailed Discussion of the Green Factors and Criminal Conduct
Screens

Absent a validation study that meets the Uniform Guidelines’ standards, the Green
factors provide the starting point for analyzing how specific criminal conduct may be linked to
particular positions. The three Green factors are:
•
•
•

The nature and gravity of the offense or conduct;
The time that has passed since the offense, conduct and/or completion of the
sentence; and
The nature of the job held or sought.
a.

The Nature and Gravity of the Offense or Conduct

Careful consideration of the nature and gravity of the offense or conduct is the first step
in determining whether a specific crime may be relevant to concerns about risks in a particular
position. The nature of the offense or conduct may be assessed with reference to the harm caused
by the crime (e.g., theft causes property loss). The legal elements of a crime also may be
instructive. For example, a conviction for felony theft may involve deception, threat, or
intimidation.115 With respect to the gravity of the crime, offenses identified as misdemeanors
may be less severe than those identified as felonies.
b.

The Time that Has Passed Since the Offense, Conduct and/or
Completion of the Sentence

Employer policies typically specify the duration of a criminal conduct exclusion. While
the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did
acknowledge that permanent exclusions from all employment based on any and all offenses were
not consistent with the business necessity standard. 116 Subsequently, in El, the court noted that
the plaintiff might have survived summary judgment if he had presented evidence that “there is a
time at which a former criminal is no longer any more likely to recidivate than the average
person . . . .” 117 Thus, the court recognized that the amount of time that had passed since the
plaintiff’s criminal conduct occurred was probative of the risk he posed in the position in
question.
Whether the duration of an exclusion will be sufficiently tailored to satisfy the business
necessity standard will depend on the particular facts and circumstances of each case. Relevant
and available information to make this assessment includes, for example, studies demonstrating
how much the risk of recidivism declines over a specified time. 118

15

c.

The Nature of the Job Held or Sought

Finally, it is important to identify the particular job(s) subject to the exclusion. While a
factual inquiry may begin with identifying the job title, it also encompasses the nature of the
job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the
circumstances under which the job is performed (e.g., the level of supervision, oversight, and
interaction with co-workers or vulnerable individuals), and the environment in which the job’s
duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal
conduct to the essential functions of the position in question may assist an employer in
demonstrating that its policy or practice is job related and consistent with business necessity
because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it
was used.” 119
7.

Examples of Criminal Conduct Exclusions that Do Not
Consider the Green Factors

A policy or practice requiring an automatic, across-the-board exclusion from all
employment opportunities because of any criminal conduct is inconsistent with the Green factors
because it does not focus on the dangers of particular crimes and the risks in particular positions.
As the court recognized in Green, “[w]e cannot conceive of any business necessity that would
automatically place every individual convicted of any offense, except a minor traffic offense, in
the permanent ranks of the unemployed.” 120
Example 5: Exclusion Is Not Job Related and Consistent with
Business Necessity. The National Equipment Rental Company uses the
Internet to accept job applications for all positions. All applicants must
answer certain questions before they are permitted to submit their online
application, including “have you ever been convicted of a crime?” If the
applicant answers “yes,” the online application process automatically
terminates, and the applicant sees a screen that simply says “Thank you
for your interest. We cannot continue to process your application at this
time.”
The Company does not have a record of the reasons why it adopted this
exclusion, and it does not have information to show that convictions for all
offenses render all applicants unacceptable risks in all of its jobs, which
range from warehouse work, to delivery, to management positions. If a
Title VII charge were filed based on these facts, and there was a disparate
impact on a Title VII-protected basis, the EEOC would find reasonable
cause to believe that the blanket exclusion was not job related and
consistent with business necessity because the risks associated with all
convictions are not pertinent to all of the Company’s jobs.
Example 6: Exclusion Is Not Job Related and Consistent with
Business Necessity. Leo, an African American man, has worked

16

successfully at PR Agency as an account executive for three years. After a
change of ownership, the new owners adopt a policy under which it will
not employ anyone with a conviction. The policy does not allow for any
individualized assessment before exclusion. The new owners, who are
highly respected in the industry, pride themselves on employing only the
“best of the best” for every position. The owners assert that a quality
workforce is a key driver of profitability.
Twenty years earlier, as a teenager, Leo pled guilty to a misdemeanor
assault charge. During the intervening twenty years, Leo graduated from
college and worked successfully in advertising and public relations
without further contact with the criminal justice system. At PR Agency,
all of Leo’s supervisors assessed him as a talented, reliable, and
trustworthy employee, and he has never posed a risk to people or property
at work. However, once the new ownership of PR Agency learns about
Leo’s conviction record through a background check, it terminates his
employment. It refuses to reconsider its decision despite Leo’s positive
employment history at PR Agency.
Leo files a Title VII charge alleging that PR Agency’s conviction policy
has a disparate impact based on race and is not job related for the position
in question and consistent with business necessity. After confirming
disparate impact, the EEOC considers PR Agency’s defense that it
employs only the “best of the best” for every position, and that this
necessitates excluding everyone with a conviction. PR Agency does not
show that all convictions are indicative of risk or danger in all its jobs for
all time, under the Green factors. Nor does PR Agency provide any
factual support for its assertion that having a conviction is necessarily
indicative of poor work or a lack of professionalism. The EEOC
concludes that there is reasonable cause to believe that the Agency’s
policy is not job related for the position in question and consistent with
business necessity. 121
8.

Targeted Exclusions that Are Guided by the Green Factors

An employer policy or practice of excluding individuals from particular positions for
specified criminal conduct within a defined time period, as guided by the Green factors, is a
targeted exclusion. Targeted exclusions are tailored to the rationale for their adoption, in light of
the particular criminal conduct and jobs involved, taking into consideration fact-based evidence,
legal requirements, and/or relevant and available studies.

17

As discussed above in Section V.B.4, depending on the facts and circumstances, an
employer may be able to justify a targeted criminal records screen solely under the Green
factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a
demonstrably tight nexus to the position in question. Title VII thus does not necessarily require
individualized assessment in all circumstances. However, the use of individualized assessments
can help employers avoid Title VII liability by allowing them to consider more complete
information on individual applicants or employees, as part of a policy that is job related and
consistent with business necessity.
9.

Individualized Assessment

Individualized assessment generally means that an employer informs the individual that
he may be excluded because of past criminal conduct; provides an opportunity to the individual
to demonstrate that the exclusion does not properly apply to him; and considers whether the
individual’s additional information shows that the policy as applied is not job related and
consistent with business necessity.
The individual’s showing may include information that he was not correctly identified in
the criminal record, or that the record is otherwise inaccurate. Other relevant individualized
evidence includes, for example:
•
•
•
•

•
•
•
•

The facts or circumstances surrounding the offense or conduct;
The number of offenses for which the individual was convicted;
Older age at the time of conviction, or release from prison; 122
Evidence that the individual performed the same type of work, post conviction,
with the same or a different employer, with no known incidents of criminal
conduct;
The length and consistency of employment history before and after the
offense or conduct; 123
Rehabilitation efforts, e.g., education/training; 124
Employment or character references and any other information regarding fitness
for the particular position; 125 and
Whether the individual is bonded under a federal, state, or local bonding
program. 126

If the individual does not respond to the employer’s attempt to gather additional
information about his background, the employer may make its employment decision without the
information.
Example 7: Targeted Screen with Individualized Assessment Is Job
Related and Consistent with Business Necessity. County Community
Center rents meeting rooms to civic organizations and small businesses,
party rooms to families and social groups, and athletic facilities to local
recreational sports leagues. The County has a targeted rule prohibiting
anyone with a conviction for theft crimes (e.g., burglary, robbery, larceny,
identity theft) from working in a position with access to personal financial

18

information for at least four years after the conviction or release from
incarceration. This rule was adopted by the County’s Human Resources
Department based on data from the County Corrections Department,
national criminal data, and recent recidivism research for theft crimes.
The Community Center also offers an opportunity for individuals
identified for exclusion to provide information showing that the exclusion
should not be applied to them.
Isaac, who is Hispanic, applies to the Community Center for a full-time
position as an administrative assistant, which involves accepting credit
card payments for room rentals, in addition to having unsupervised access
to the personal belongings of people using the facilities. After conducting
a background check, the County learns that Isaac pled guilty eighteen
months earlier, at age twenty, to credit card fraud, and that he did not
serve time in prison. Isaac confirms these facts, provides a reference from
the restaurant where he now works on Saturday nights, and asks the
County for a “second chance” to show that he is trustworthy. The County
tells Isaac that it is still rejecting his employment application because his
criminal conduct occurred eighteen months ago and is directly pertinent to
the job in question. The information he provided did nothing to dispel the
County’s concerns.
Isaac challenges this rejection under Title VII, alleging that the policy has
a disparate impact on Hispanics and is not job related and consistent with
business necessity. After confirming disparate impact, the EEOC finds
that this screen was carefully tailored to assess unacceptable risk in
relevant positions, for a limited time period, consistent with the evidence,
and that the policy avoided overbroad exclusions by allowing individuals
an opportunity to explain special circumstances regarding their criminal
conduct. Thus, even though the policy has a disparate impact on
Hispanics, the EEOC does not find reasonable cause to believe that
discrimination occurred because the policy is job related and consistent
with business necessity. 127
Example 8: Targeted Exclusion Without Individualized Assessment Is
Not Job Related and Consistent with Business Necessity. “Shred 4
You” employs over 100 people to pick up discarded files and sensitive
materials from offices, transport the materials to a secure facility, and
shred and recycle them. The owner of “Shred 4 You” sells the company
to a competitor, known as “We Shred.” Employees of “Shred 4 You”
must reapply for employment with “We Shred” and undergo a background
check. “We Shred” has a targeted criminal conduct exclusion policy that
prohibits the employment of anyone who has been convicted of any crime
related to theft or fraud in the past five years, and the policy does not
provide for any individualized consideration. The company explains that
its clients entrust it with handling sensitive and confidential information

19

and materials; therefore, it cannot risk employing people who pose an
above-average risk of stealing information.
Jamie, who is African American, worked successfully for “Shred 4 You”
for five years before the company changed ownership. Jamie applies for
his old job, and “We Shred” reviews Jamie’s performance appraisals,
which include high marks for his reliability, trustworthiness, and honesty.
However, when “We Shred” does a background check, it finds that Jamie
pled guilty to misdemeanor insurance fraud five years ago, because he
exaggerated the costs of several home repairs after a winter storm. “We
Shred” management informs Jamie that his guilty plea is evidence of
criminal conduct and that his employment will be terminated. Jamie asks
management to consider his reliable and honest performance in the same
job at “Shred 4 You,” but “We Shred” refuses to do so. The employer’s
conclusion that Jamie’s guilty plea demonstrates that he poses an elevated
risk of dishonesty is not factually based given Jamie’s history of
trustworthiness in the same job. After confirming disparate impact based
on race (African American), the EEOC finds reasonable cause to believe
that Title VII was violated because the targeted exclusion was not job
related and consistent with business necessity based on these facts.
C.

Less Discriminatory Alternatives

If 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. 128
VI.

Positions Subject to Federal Prohibitions or Restrictions on Individuals with
Records of Certain Criminal Conduct

In some industries, employers are subject to federal statutory and/or regulatory
requirements that prohibit individuals with certain criminal records from holding particular
positions or engaging in certain occupations. Compliance with federal laws and/or regulations is
a defense to a charge of discrimination. However, the EEOC will continue to coordinate with
other federal departments and agencies with the goal of maximizing federal regulatory
consistency with respect to the use of criminal history information in employment decisions. 129
A.

Hiring in Certain Industries

Federal laws and regulations govern the employment of individuals with specific
convictions in certain industries or positions in both the private and public sectors. For example,
federal law excludes an individual who was convicted in the previous ten years of specified
crimes from working as a security screener or otherwise having unescorted access to the secure
areas of an airport. 130 There are equivalent requirements for federal law enforcement officers, 131

20

child care workers in federal agencies or facilities, 132 bank employees, 133 and port workers, 134
among other positions. 135 Title VII does not preempt these federally imposed restrictions.
However, if an employer decides to impose an exclusion that goes beyond the scope of a
federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII
analysis.
Example 9: Exclusion Is Not Job Related and Consistent with
Business Necessity. Your Bank has a rule prohibiting anyone with
convictions for any type of financial or fraud-related crimes within the last
twenty years from working in positions with access to customer financial
information, even though the federal ban is ten years for individuals who
are convicted of any criminal offense involving dishonesty, breach of
trust, or money laundering from serving in such positions.
Sam, who is Latino, applies to Your Bank to work as a customer service
representative. A background check reveals that Sam was convicted of a
misdemeanor for misrepresenting his income on a loan application fifteen
years earlier. Your Bank therefore rejects Sam, and he files a Title VII
charge with the EEOC, alleging that the Bank’s policy has a disparate
impact based on national origin and is not job related and consistent with
business necessity. Your Bank asserts that its policy does not cause a
disparate impact and that, even if it does, it is job related for the position
in question because customer service representatives have regular access
to financial information and depositors must have “100% confidence” that
their funds are safe. However, Your Bank does not offer evidence
showing that there is an elevated likelihood of committing financial crimes
for someone who has been crime-free for more than ten years. After
establishing that the Bank’s policy has a disparate impact based on
national origin, the EEOC finds that the policy is not job related for the
position in question and consistent with business necessity. The Bank’s
justification for adding ten years to the federally mandated exclusion is
insufficient because it is only a generalized concern about security,
without proof.
B.

Obtaining Occupational Licenses

Title VII also does not preempt federal statutes and regulations that govern eligibility for
occupational licenses and registrations. These restrictions cover diverse sectors of the economy
including the transportation industry, 136 the financial industry, 137 and import/export activities, 138
among others. 139
C.

Waiving or Appealing Federally Imposed Occupational Restrictions

Several federal statutes and regulations provide a mechanism for employers or
individuals to appeal or apply for waivers of federally imposed occupational restrictions. For
example, unless a bank receives prior written consent from the Federal Deposit Insurance

21

Corporation (FDIC), an individual convicted of a criminal offense involving dishonesty, breach
of trust, money laundering, or another financially related crime may not work in, own, or control
“an insured depository institution” (e.g., bank) for ten years under the Federal Deposit Insurance
Act. 140 To obtain such FDIC consent, the insured institution must file an application for a waiver
on behalf of the particular individual. 141 Alternatively, if the insured institution does not apply
for the waiver on the individual’s behalf, the individual may file a request directly with the FDIC
for a waiver of the institution filing requirement, demonstrating “substantial good cause” to grant
the waiver. 142 If the FDIC grants the individual’s waiver request, the individual can then file an
application directly with the FDIC for consent to work for the insured institution in question.143
Once the institution, or the individual, submits the application, the FDIC’s criminal record
waiver review process requires consideration of mitigating factors that are consistent with Title
VII, including evidence of rehabilitation, and the nature and circumstances of the crime. 144
Additionally, port workers who are denied the Transportation Workers Identification
Credential (TWIC) based on their conviction record may seek a waiver for certain permanently
disqualifying offenses or interim disqualifying offenses, and also may file an individualized
appeal from the Transportation Security Administration’s initial determination of threat
assessment based on the conviction. 145 The Maritime Transportation Security Act, which
requires all port workers to undergo a criminal background check to obtain a TWIC, 146 provides
that individuals with convictions for offenses such as espionage, treason, murder, and a federal
crime of terrorism are permanently disqualified from obtaining credentials, but those with
convictions for firearms violations and distribution of controlled substances may be temporarily
disqualified. 147 Most offenses related to dishonesty are only temporarily disqualifying. 148
Example 10: Consideration of Federally Imposed Occupational
Restrictions. John Doe applies for a position as a truck driver for
Truckers USA. John’s duties will involve transporting cargo to, from, and
around ports, and Truckers USA requires all of its port truck drivers to
have a TWIC. The Transportation Security Administration (TSA)
conducts a criminal background check and may deny the credential to
applicants who have permanently disqualifying criminal offenses in their
background as defined by federal law. After conducting the background
check for John Doe, TSA discovers that he was convicted nine years
earlier for conspiracy to use weapons of mass destruction. TSA denies
John a security card because this is a permanently disqualifying criminal
offense under federal law. 149 John, who points out that he was a minor at
the time of the conviction, requests a waiver by TSA because he had
limited involvement and no direct knowledge of the underlying crime at
the time of the offense. John explains that he helped a friend transport
some chemical materials that the friend later tried to use to damage
government property. TSA refuses to grant John’s waiver request because
a conviction for conspiracy to use weapons of mass destruction is not
subject to the TSA’s waiver procedures. 150 Based on this denial, Truckers
USA rejects John’s application for the port truck driver position. Title VII
does not override Truckers USA’s policy because the policy is consistent
with another federal law.

22

While Title VII does not mandate that an employer seek such waivers, where an
employer does seek waivers it must do so in a nondiscriminatory manner.
D.

Security Clearances

The existence of a criminal record may result in the denial of a federal security clearance,
which is a prerequisite for a variety of positions with the federal government and federal
government contractors. 151 A federal security clearance is used to ensure employees’
trustworthiness, reliability, and loyalty before providing them with access to sensitive national
security information. 152 Under Title VII’s national security exception, it is not unlawful for an
employer to “fail or refuse to hire and employ” an individual because “such individual has not
fulfilled or has ceased to fulfill” the federal security requirements. 153 This exception focuses on
whether the position in question is, in fact, subject to national security requirements that are
imposed by federal statute or Executive Order, and whether the adverse employment action
actually resulted from the denial or revocation of a security clearance. 154 Procedural
requirements related to security clearances must be followed without regard to an individual’s
race, color, religion, sex, or national origin. 155
E.

Working for the Federal Government

Title VII provides that, with limited coverage exceptions, “[a]ll personnel actions
affecting employees or applicants for employment . . . shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 156 The principles discussed
above in this Guidance apply in the federal employment context. In most circumstances,
individuals with criminal records are not automatically barred from working for the federal
government. 157 However, the federal government imposes criminal record restrictions on its
workforce through “suitability” requirements for certain positions. 158 The federal government’s
Office of Personnel Management (OPM) defines suitability as “determinations based on a
person's character or conduct that may have an impact on the integrity or efficiency of the
service.” 159 Under OPM's rules, agencies may bar individuals from federal employment for up
to three years if they are found unsuitable based on criminal or dishonest conduct, among other
factors. 160 OPM gives federal agencies the discretion to consider relevant mitigating criteria
when deciding whether an individual is suitable for a federal position. 161 These mitigating
criteria, which are consistent with the three Green factors and also provide an individualized
assessment of the applicant’s background, allow consideration of: (1) the nature of the position
for which the person is applying or in which the person is employed; (2) the nature and
seriousness of the conduct; (3) the circumstances surrounding the conduct; (4) the recency of the
conduct; (5) the age of the person involved at the time of the conduct; (6) contributing societal
conditions; and (7) the absence or presence of rehabilitation or efforts toward rehabilitation. 162
In general, OPM requires federal agencies and departments to consider hiring an individual with
a criminal record if he is the best candidate for the position in question and can comply with
relevant job requirements. 163 The EEOC continues to coordinate with OPM to achieve employer
best practices in the federal sector. 164

23

VII.

Positions Subject to State and Local Prohibitions or Restrictions on Individuals with
Records of Certain Criminal Conduct

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the
employment of individuals with records of certain criminal conduct. 165 Unlike federal laws or
regulations, however, state 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. 166 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. 167
Example 11: 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 12: 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.

24

VIII. Employer Best Practices
The following are examples of best practices for employers who are considering criminal
record information when making employment decisions.
General
•

Eliminate policies or practices that exclude people from employment based on any criminal
record.

•

Train managers, hiring officials, and decisionmakers 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.
o Identify the criminal offenses based on all available evidence.

•

Determine the duration of exclusions for criminal conduct based on all available
evidence.
o 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 decisionmakers 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.

25

Confidentiality
•

Keep information about applicants’ and employees’ criminal records confidential. Only use
it for the purpose for which it was intended.

Approved by the Commission:

_____________________________
Chair Jacqueline A. Berrien

_____________
Date

26

ENDNOTES

1

42 U.S.C. § 2000e et seq. The EEOC also enforces other anti-discrimination laws
including: Title I of the Americans with Disabilities Act of 1990, as amended (ADA), and
Section 501 of the Rehabilitation Act, as amended, which prohibit employment discrimination on
the basis of disability; the Age Discrimination in Employment Act of 1967, as amended
(ADEA), which prohibits discrimination on the basis of age 40 or above; Title II of the Genetic
Information Nondiscrimination Act of 2008 (GINA), which prohibits discrimination on the basis
of genetic information; and the Equal Pay Act of 1963, as amended (EPA), which requires
employers to pay male and female employees at the same establishment equal wages for equal
work.

2

All entities covered by Title VII are subject to this analysis. See 42 U.S.C. § 2000e-2
(anti-discrimination provisions); 42 U.S.C. § 2000e(b)–(e) (defining “employer,” “employment
agency,” and “labor organization”); 42 U.S.C. § 2000e-16(a) (prohibiting discriminatory
employment practices by federal departments and agencies). For purposes of this Guidance, the
term “employer” is used in lieu of listing all Title VII-covered entities. The Commission
considers other coverage questions that arise in particular charges involving, for example, joint
employment or third party interference in Compliance Manual Section 2: Threshold Issues, U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, § 2-III B., Covered Entities,
http://www.eeoc.gov/policy/docs/threshold.html#2-III-B (last visited April 23, 2012).
3

For the purposes of this Guidance, references to “contact” with the criminal justice
system may include, for example, an arrest, charge, indictment, citation, conviction,
incarceration, probation, or parole.
4

See THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001, at 3 (2003),
http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf [hereinafter PREVALENCE OF
IMPRISONMENT] (“Between 1974 and 2001 the number of former prisoners living in the United
States more than doubled, from 1,603,000 to 4,299,000.”); SEAN ROSENMERKEL ET AL., BUREAU
OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, 2006 –
STATISTICAL TABLES 1 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf (reporting
that between 1990 and 2006, there has been a 37% increase in the number of felony offenders
sentenced in state courts); see also PEW CTR. ON THE STATES, ONE IN 31: THE LONG REACH OF
AMERICAN CORRECTIONS 4 (2009),
http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_3-2609.pdf [hereinafter ONE IN 31] (“During the past quarter-century, the number of prison and jail
inmates has grown by 274 percent . . . .[bringing] the total population in custody to 2.3 million.
During the same period, the number under community supervision grew by a staggering
3,535,660 to a total of 5.1 million.”); PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN
AMERICA 2008, at 3 (2008),
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-11_FORWEB.pdf (“[M]ore than one in every 100 adults is now confined in an American jail or

27

prison.”); Robert Brame, Michael G. Turner, Raymond Paternoster, & Shawn D. Bushway,
Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 PEDIATRICS 21,
25, 26 (2012) (finding that approximately 1 out of 3 of all American youth will experience at
least 1 arrest for a nontraffic offense by the age of 23).
5

See JOHN SCHMITT & KRIS WARNER, CTR. FOR ECON. & POLICY RESEARCH, EXOFFENDERS AND THE LABOR MARKET 12 (2010), www.cepr.net/documents/publications/exoffenders-2010-11.pdf (“In 2008, ex-prisoners were 2.9 to 3.2 percent of the total working-age
population (excluding those currently in prison or jail) or about one in 33 working-age adults.
Ex-felons were a larger share of the total working-age population: 6.6 to 7.4 percent, or about
one in 15 working-age adults [not all felons serve prison terms].”); see id. at 3 (concluding that
“in the absence of some reform of the criminal justice system, the share of ex-offenders in the
working-age population will rise substantially in coming decades”).
6

PREVALENCE OF IMPRISONMENT, supra note 4, at 4, Table 3.

7

Id.

8

ONE IN 31, supra note 4, at 5 (noting that when all of the individuals who are
probationers, parolees, prisoners or jail inmates are added up, the total is more than 7.3 million
adults; this is more than the populations of Chicago, Philadelphia, San Diego, and Dallas
combined, and larger than the populations of 38 states and the District of Columbia).
9

PREVALENCE OF IMPRISONMENT, supra note 4, at 7.

10

Id. at 5, Table 5; cf. PEW CTR. ON THE STATES, COLLATERAL COSTS: INCARCERATION’S
EFFECT ON ECONOMIC MOBILITY 6 (2010),
http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653 (“Simply
stated, incarceration in America is concentrated among African American men. While 1 in every
87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is
1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old
men without a high school diploma or GED: 1 in 8 White males in this demographic group is
incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. PEW CTR. ON THE
STATES, supra, at 8, Figure 2.
11

This document uses the terms “Black” and “African American,” and the terms
“Hispanic” and “Latino,” interchangeably.
12

See infra notes 65–67 (citing data for the arrest rates and population statistics for African
Americans and Hispanics).
13

PREVALENCE OF IMPRISONMENT, supra note 4, at 1.

14

Id. at 8.

28

15

See Policy Statement on the Issue of Conviction Records Under Title VII of the Civil
Rights Act of 1964, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (Feb. 4, 1987),
http://www.eeoc.gov/policy/docs/convict1.html; EEOC Policy Statement on the Use of Statistics
in Charges Involving the Exclusion of Individuals with Conviction Records from Employment,
U.S. EQUAL EMP’T OPPORTUNITY COMM’N (July 29, 1987),
http://www.eeoc.gov/policy/docs/convict2.html; Policy Guidance on the Consideration of Arrest
Records in Employment Decisions Under Title VII, U.S. EQUAL EMP’T OPPORTUNITY COMM’N
(Sept. 7, 1990), http://www.eeoc.gov/policy/docs/arrest_records.html; Compliance Manual
Section 15: Race & Color Discrimination, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, § 15VI.B.2 (April 19, 2006), http://www.eeoc.gov/policy/docs/race-color.pdf. See also EEOC
Decision No. 72-1497 (1972) (challenging a criminal record exclusion policy based on “serious
crimes”); EEOC Decision No. 74-89 (1974) (challenging a policy where a felony conviction was
considered an adverse factor that would lead to disqualification); EEOC Decision No. 78-03
(1977) (challenging an exclusion policy based on felony or misdemeanor convictions involving
moral turpitude or the use of drugs); EEOC Decision No. 78-35 (1978) (concluding that an
employee’s discharge was reasonable given his pattern of criminal behavior and the severity and
recentness of his criminal conduct).
16

In 2011, U.S. Attorney General Eric Holder assembled a Cabinet-level interagency
Reentry Council to support the federal government’s efforts to promote the successful
reintegration of ex-offenders back into their communities. National Reentry Resource Center –
Federal Interagency Reentry Council, http://www.nationalreentryresourcecenter.org/reentrycouncil (last visited April 23, 2012). As a part of the Council’s efforts, it has focused on
removing barriers to employment for ex-offenders to reduce recidivism by publishing several
fact sheets on employing individuals with criminal records. See, e.g., FED. INTERAGENCY
REENTRY COUNCIL, REENTRY MYTHBUSTER! ON FEDERAL HIRING POLICIES (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1083/Reentry_Council_Mythbust
er_Fed_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON
HIRING/CRIMINAL RECORDS GUIDANCE (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry_Council_Mythbust
er_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! CRIMINAL
HISTORIES AND EMPLOYMENT BACKGROUND CHECKS (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1176/Reentry_Council_Mythbust
er_FCRA_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON
FEDERAL BONDING PROGRAM (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1061/Reentry_Council_Mythbust
er_Federal_Bonding.pdf.
In addition to these federal efforts, several state law enforcement agencies have embraced
initiatives and programs that encourage the employment of ex-offenders. For example, Texas’
Department of Criminal Justice has a Reentry and Integration Division and within that Division,
a Reentry Task Force Workgroup. See Reentry and Integration Division-Reentry Task Force,
TEX. DEP’T OF CRIMINAL JUSTICE,
http://www.tdcj.state.tx.us/divisions/rid/rid_texas_reentry_task_force.html (last visited April 23,
2012). One of the Workgroups in this Task Force specifically focuses on identifying

29

employment opportunities for ex-offenders and barriers that affect ex-offenders’ access to
employment or vocational training programs. Reentry and Integration Division – Reentry Task
Force Workgroups, TEX. DEP’T OF CRIMINAL JUSTICE,
http://www.tdcj.state.tx.us/divisions/rid/r_workgroup/rid_workgroup_employment.html (last
visited April 23, 2012). Similarly, Ohio’s Department of Rehabilitation and Correction has an
Offender Workforce Development Office that “works with departmental staff and correctional
institutions within the Ohio Department of Rehabilitation and Correction to prepare offenders for
employment and the job search process.” Jobs for Ohio Offenders, OHIO DEP’T OF REHAB. AND
CORR. OFFENDER WORKFORCE DEV., http://www.drc.ohio.gov/web/JOBOFFEN.HTM (last
updated Aug. 9, 2010). Law enforcement agencies in other states such as Indiana and Florida
have also recognized the importance of encouraging ex-offender employment. See, e.g., IDOC:
Road to Re-Entry, IND. DEP’T OF CORR., http://www.in.gov/idoc/reentry/index.htm (last visited
April 23, 2012) (describing various services and programs that are available to ex-offenders to
help them to obtain employment); FLA. DEP’T OF CORRS., RECIDIVISM REDUCTION STRATEGIC
PLAN: FISCAL YEAR 2009-2014, at 11, 12 (2009),
http://www.dc.state.fl.us/orginfo/FinalRecidivismReductionPlan.pdf (identifying the lack of
employment as one of the barriers to successful ex-offender reentry).
17

CARL R. ERNST & LES ROSEN, “NATIONAL” CRIMINAL HISTORY DATABASES 1 (2002),
http://www.brbpub.com/articles/CriminalHistoryDB.pdf.
18

LEXISNEXIS, CRIMINAL BACKGROUND CHECKS: WHAT NON-PROFITS NEED TO KNOW
ABOUT CRIMINAL RECORDS 4 (2009),
http://www.lexisnexis.com/risk/nonprofit/documents/Volunteer_Screening_White_Paper.pdf.
19

Id.

20

ERNST & ROSEN, supra note 17, at 1; NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS,
CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT PURPOSES 5,
http://www.napbs.com/files/public/Learn_More/White_Papers/CriminalBackgroundChecks.pdf.
LEXISNEXIS, supra note 18, at 6. See also NAT’L ASS’N OF PROF’L BACKGROUND
SCREENERS, supra note 20 at 5.
21

22

ERNST & ROSEN, supra note 17, at 1.

23

Id.

24

See SEARCH, THE NATIONAL TASK FORCE ON THE CRIMINAL BACKGROUNDING OF
AMERICA 3, 4 (2005), http://www.search.org/files/pdf/ReportofNTFCBA.pdf. Registries and
watch lists can also include federal and international terrorist watch lists, and registries of
individuals who are being investigated for certain types of crimes, such as gang-related crimes.
Id. See also LEXISNEXIS, supra note 18, at 5 (reporting that “all 50 states currently have a
publicly available sex offender registry”).
25

See U.S. DEP’T OF JUSTICE, THE ATTORNEY GENERAL’S REPORT ON CRIMINAL HISTORY

30

BACKGROUND CHECKS 4 (2006), http://www.justice.gov/olp/ag_bgchecks_report.pdf [hereinafter
BACKGROUND CHECKS]. See also ERNST & ROSEN, supra note 17, at 2.
26

See NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS, supra note 20, at 5. See also
LEXISNEXIS, supra note 18, at 5.

27

LEXISNEXIS, supra note 18, at 5. See also AM. ASS’N OF COLLS. OF PHARMACY, REPORT
OF THE AACP CRIMINAL BACKGROUND CHECK ADVISORY PANEL 6–7 (2006),
http://www.aacp.org/resources/academicpolicies/admissionsguidelines/Documents/AACPBackgr
oundChkRpt.pdf.
28

AM. ASS’N OF COLLS. OF PHARMACY, supra note 27, at 6–7.

29

BACKGROUND CHECKS, supra note 25, at 4.

30

Id.

31

NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS, supra note 20, at 5.

32

BACKGROUND CHECKS, supra note 25, at 4.

33

Id. at 3.

34

See id. (“Non-criminal justice screening using FBI criminal history records is typically
done by a government agency applying suitability criteria that have been established by law or
the responsible agency.”).

35

Id. at 5.

36

Id. at 4.

37

DENNIS A. DEBACCO & OWEN M. GREENSPAN, BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS, 2010, at 2
(2011), https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafter STATE CRIMINAL
HISTORY].
38

See BACKGROUND CHECKS, supra note 25, at 17.

39

SEARCH, REPORT OF THE NATIONAL TASK FORCE ON THE COMMERCIAL SALE OF
CRIMINAL JUSTICE RECORD INFORMATION 83 (2005),
www.search.org/files/pdf/RNTFCSCJRI.pdf; see also Douglas Belkin, More Job Seekers
Scramble to Erase Their Criminal Past, WALL ST. J., Nov. 11, 2009, at A1, available at
http://online.wsj.com/article/SB125789494126242343.html?KEYWORDS=Douglas+Belkin
(“Arrests that have been legally expunged may remain on databases that data-harvesting
companies offer to prospective employers; such background companies are under no legal
obligation to erase them.”).

31

If applicants deny the existence of expunged or sealed records, as they are permitted to do
in several states, they may appear dishonest if such records are reported in a criminal background
check. See generally Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil
Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1509–10 (2003) (noting
that 29 of the 40 states that allow expungement/sealing of arrest records permit the subject of the
record to deny its existence if asked about it on employment applications or similar forms, and
13 of the 16 states that allow the expungement/sealing of adult conviction records permit the
subject of the record to deny its existence under similar circumstances).
40

See SEARCH, INTERSTATE IDENTIFICATION NAME CHECK EFFICACY: REPORT OF THE
NATIONAL TASK FORCE TO THE U.S. ATTORNEY GENERAL 21–22 (1999),
www.search.org/files/pdf/III_Name_Check.pdf (“A so-called 'name check' is based not only on
an individual's name, but also on other personal identifiers such as sex, race, date of birth and
Social Security Number. . . . [N]ame checks are known to produce inaccurate results as a
consequence of identical or similar names and other identifiers."); id. at 7 (finding that in a
sample of 82,601 employment applicants, 4,562 of these individuals were inaccurately indicated
by a “name check” to have criminal records, which represents approximately 5.5% of the overall
sample).
41

BACKGROUND CHECKS, supra note 25, at 2.

42

A “consumer reporting agency” is defined by FCRA as “any person which, for monetary
fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the
practice of assembling or evaluating consumer credit information or other information on
consumers for the purposes of furnishing consumer reports to third parties . . . .” 15 U.S.C.
§ 1681a(f) (emphasis added); see also BACKGROUND CHECKS, supra note 25, at 43 (stating that
the records that CRAs collect include “criminal history information, such as arrest and
conviction information”).
43

A “consumer report” is defined by FCRA as “any written, oral, or other communication
of any information by a consumer reporting agency bearing on a consumer’s credit worthiness,
credit standing, credit capacity, character, general reputation, personal characteristics, or mode
of living which is used or expected to be used or collected in whole or in part for the purpose of
serving as a factor in establishing the consumer’s eligibility for . . . employment purposes . . . .”
15 U.S.C. § 1681a(d)(1) (emphasis added).
44

See 15 U.S.C. § 1681c(a)(2) (“[N]o consumer reporting agency may make any consumer
report containing . . . records of arrest that, from date of entry, antedate the report by more than
seven years or until the governing statute of limitations has expired, whichever is the longer
period.”). But see id. §1681c(b)(3) (stating that the reporting restrictions for arrest records do not
apply to individuals who will earn “an annual salary which equals, or which may reasonably be
expected to equal $75,000 or more”).
45

15 U.S.C. § 1681c(a)(5) (“[N]o consumer reporting agency may make any consumer
report containing . . . [a]ny other adverse item of information, other than records of convictions
of crimes which antedates the report by more than seven years.”).

32

46

BACKGROUND CHECKS, supra note 25, at 2.

47

See Adam Klein, Written Testimony of Adam Klein, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/klein.cfm (last visited April 23, 2012)
(describing how “several data-collection agencies also market and sell a retail-theft contributory
database that is used by prospective employers to screen applicants”). See also Retail Theft
Database, ESTEEM, Workplace Theft Contributory Database, LEXISNEXIS,
http://www.lexisnexis.com/risk/solutions/retail-theft-contributory-database.aspx (last visited
April 23, 2012) (stating that their database has “[t]heft and shoplifting cases supplied by more
than 75,000 business locations across the country”). These databases may contain inaccurate
and/or misleading information about applicants and/or employees. See generally Goode v.
LexisNexis Risk & Info. Analytics Grp., Inc., No. 2:11-CV-2950-JD, 2012 WL 975043 (E.D. Pa.
Mar. 22, 2012) (unpublished).
48

BACKGROUND CHECKS, supra note 25, at 2.

49

SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL
BACKGROUND CHECKS, slide 3 (Jan. 22, 2010), http://www.slideshare.net/shrm/backgroundcheck-criminal?from=share_email [hereinafter CONDUCTING CRIMINAL BACKGROUND CHECKS]
(73% of the responding employers reported that they conducted criminal background checks on
all of their job candidates, 19% reported that they conducted criminal background checks on
selected job candidates, and a mere 7% reported that they did not conduct criminal background
checks on any of their candidates). The survey excluded the “not sure” responses from its
analysis, which may account for the 1% gap in the total number of employer responses. Id.
50

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (39% of the
surveyed employers reported that they conducted criminal background checks “[t]o
reduce/prevent theft and embezzlement, other criminal activity”); see also Sarah E. Needleman,
Businesses Say Theft by Their Workers is Up, WALL ST. J., Dec. 11, 2008, at B8, available at
http://online.wsj.com/article/SB122896381748896999.html.
51

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (61% of the
surveyed employers reported that they conducted criminal background checks “[to] ensure a safe
work environment for employees”); see also ERIKA HARRELL, BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE, WORKPLACE VIOLENCE, 1993–2009, at 1 (2011),
http://bjs.ojp.usdoj.gov/content/pub/pdf/wv09.pdf (reporting that in 2009, “[n]onfatal violence in
the workplace was about 15% of all nonfatal violent crime against persons age 16 or older”). But
see id. (noting that from “2002 to 2009, the rate of nonfatal workplace violence has declined by
35%, following a 62% decline in the rate from 1993 to 2002”). Studies indicate that most
workplace violence is committed by individuals with no relationship to the business or its
employees. See id. at 6 (reporting that between 2005 and 2009, strangers committed the majority
of workplace violence against individuals (53% for males and 41% for females) while violence
committed by co-workers accounted for a much smaller percentage (16.3% for males and 14.3%
for females)); see also NAT’L INST. FOR OCCUPATIONAL SAFETY & HEALTH, CTR. FOR DISEASE
CONTROL & PREVENTION, WORKPLACE VIOLENCE PREVENTION STRATEGIES AND RESEARCH

33

NEEDS 4, Table 1 (2006), http://www.cdc.gov/niosh/docs/2006-144/pdfs/2006-144.pdf (reporting
that approximately 85% of the workplace homicides examined were perpetrated in furtherance
of a crime by persons with no relationship to the business or its employees; approximately 7%
were perpetrated by employees or former employees, 5% were committed by persons with a
personal relationship to an employee, and 3% were perpetrated by persons with a customer-client
relationship to the business).
52

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (55% percent of
the surveyed employers reported that they conducted criminal background checks “[t]o reduce
legal liability for negligent hiring”). Employers have a common law duty to exercise reasonable
care in hiring to avoid foreseeable risks of harm to employees, customers, and the public. If an
employee engages in harmful misconduct on the job, and the employer has not exercised such
care in selecting the employee, the employer may be subject to liability for negligent hiring. See,
e.g., Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1318 (M.D. Fla. 2002) (“[N]egligent hiring
occurs when . . . the employer knew or should have known of the employee’s unfitness, and the
issue of liability primarily focuses upon the adequacy of the employer’s pre-employment
investigation into the employee’s background.”).
53

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 4 (40% of the
surveyed employers reported that they conducted criminal background checks for “[j]ob
candidates for positions for which state law requires a background check (e.g., day care teachers,
licensed medical practitioners, etc.)”); see id. at slide 7 (20% of the employers reported that they
conducted criminal background checks “[t]o comply with the applicable State law requiring a
background check (e.g., day care teachers, licensed medical practitioners, etc.) for a particular
position”). The study did not report the exact percentage of employers that conducted criminal
background checks to comply with applicable federal laws or regulations, but it did report that
25% of the employers conducted background checks for “[j]ob candidates for positions involving
national defense or homeland security.” Id. at slide 4.
54

See 42 U.S.C. § 2000e-2(a).

55

Disparate treatment based on the race or national origin of job applicants with the same
qualifications and criminal records has been documented. For example, a 2003 study
demonstrated that White applicants with the same qualifications and criminal records as Black
applicants were three times more likely to be invited for interviews than the Black applicants.
See Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 958, Figure 6 (2003),
www.princeton.edu/~pager/pager_ajs.pdf. Pager matched pairs of young Black and White men
as “testers” for her study. The “testers” in Pager’s study were college students who applied for
350 low-skilled jobs advertised in Milwaukee-area classified advertisements, to test the degree to
which a criminal record affects subsequent employment opportunities. The same study showed
that White job applicants with a criminal record were called back for interviews more often than
equally-qualified Black applicants who did not have a criminal record. Id. at 958. See also
Devah Pager et al., Sequencing Disadvantage: The Effects of Race and Criminal Background for
Low Wage Job Seekers, 623 ANNALS AM. ACAD. POL. & SOC. SCI., 199 (2009),
www.princeton.edu/~pager/annals_sequencingdisadvantage.pdf (finding that among Black and

34

White testers with similar backgrounds and criminal records, “the negative effect of a criminal
conviction is substantially larger for blacks than whites. . . . the magnitude of the criminal record
penalty suffered by black applicants (60 percent) is roughly double the size of the penalty for
whites with a record (30 percent)”); see id. at 200–201 (finding that personal contact plays an
important role in mediating the effects of a criminal stigma in the hiring process, and that Black
applicants are less often invited to interview, thereby having fewer opportunities to counteract
the stigma by establishing rapport with the hiring official); Devah Pager, Statement of Devah
Pager, Professor of Sociology at Princeton University, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/11-20-08/pager.cfm (last visited April 23, 2012)
(discussing the results of the Sequencing Disadvantage study); DEVAH PAGER & BRUCE
WESTERN, NYC COMMISSION ON HUMAN RIGHTS, RACE AT WORK, REALITIES OF RACE AND
CRIMINAL RECORD IN THE NYC JOB MARKET 6, Figure 2 (2006),
http://www.nyc.gov/html/cchr/pdf/race_report_web.pdf (finding that White testers with a felony
conviction were called back 13% of the time, Hispanic testers without a criminal record were
called back 14% of the time, and Black testers without a criminal record were called back 10% of
the time).
56

Race & Color Discrimination, supra note 15, § V.A.1.

57

A 2006 study demonstrated that employers who are averse to hiring people with criminal
records sometimes presumed, in the absence of evidence to the contrary, that African American
men applying for jobs have disqualifying criminal records. Harry J. Holzer et al., Perceived
Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49
J.L. & ECON. 451 (2006), http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; see also
HARRY HOLZER ET AL., URBAN INST., EMPLOYER DEMAND FOR EX-OFFENDERS: RECENT
EVIDENCE FROM LOS ANGELES 6–7 (2003),
http://www.urban.org/UploadedPDF/410779_ExOffenders.pdf (describing the results of an
employer survey where over 40% of the employers indicated that they would “probably not” or
“definitely not” be willing to hire an applicant with a criminal record).
58

The Commission has not done matched-pair testing to investigate alleged discriminatory
employment practices. However, it has issued an Enforcement Guidance that discusses
situations where individuals or organizations file charges on the basis of matched-pair testing,
among other practices. See generally Enforcement Guidance: Whether “Testers” Can File
Charges and Litigate Claims of Employment Discrimination, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N (May 22, 1996), http://www.eeoc.gov/policy/docs/testers.html.
59

42 U.S.C. § 2000e-2(k)(1)(A)(i). If 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. Id. § 2000e-2(k)(1)(A)(ii).
60

401 U.S. 424, 431–32 (1971).

35

61

Id. at 431.

62

The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105; see also Lewis v. City of
Chicago, 130 S. Ct. 2191 (2010) (reaffirming disparate impact analysis); Ricci v. DeStefano, 557
U.S. 557 (2009) (same).
63

42 U.S.C. § 2000e-2(k)(1)(A)(i).

64

The Commission presumes that employers use the information sought and obtained from
its applicants and others in making an employment decision. See Gregory v. Litton Sys. Inc.,316
F. Supp. 401, 403 (C.D. Cal.1970). If an employer asserts that it did not factor the applicant’s or
employee’s known criminal record into an employment decision, the EEOC will seek evidence
supporting this assertion. For example, evidence that the employer has other employees from the
same protected group with roughly comparable criminal records may support the conclusion that
the employer did not use the applicant’s or employee’s criminal record to exclude him from
employment.
65

UNIF. CRIME REPORTING PROGRAM, FED. BUREAU OF INVESTIGATION, CRIME IN THE U.S.
2010, at Table 43a (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-inthe-u.s.-2010/tables/table-43/10tbl43a.xls.
66

U.S. CENSUS BUREAU, THE BLACK POPULATION: 2010, at 3 (2011) ,
http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf (reporting that in 2010, “14 percent
of all people in the United States identified as Black, either alone, or in combination with one or
more races”).
67

Accurate data on the number of Hispanics arrested and convicted in the United States is
limited. See NANCY E. WALKER ET AL., NAT’L COUNCIL OF LA RAZA, LOST OPPORTUNITIES: THE
REALITY OF LATINOS IN THE U.S. CRIMINAL JUSTICE SYSTEM 17–18 (2004),
http://www.policyarchive.org/handle/10207/bitstreams/20279.pdf (explaining why “[i]t is very
difficult to find any information – let alone accurate information – on the number of Latinos
arrested in the United States”). The Department of Justice’s Bureau of Justice Statistics’ (BJS)
Sourcebook of Criminal Justice Statistics and the FBI’s Crime Information Services Division do
not provide data for arrests by ethnicity. Id. at 17. However, the U.S. Drug Enforcement
Administration (DEA) disaggregates data by Hispanic and non-Hispanic ethnicity. Id. at 18.
According to DOJ/BJS, from October 1, 2008 to September 30, 2009, 45.5% of drug arrests
made by the DEA were of Hispanics or Latinos. MARK MOTIVANS, BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL JUSTICE STATISTICS, 2009 – STATISTICAL TABLES,
at 6, Table 1.4 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf. Accordingly, Hispanics
were arrested for drug offenses by the DEA at a rate of three times their numbers in the general
population. See U.S. CENSUS BUREAU, OVERVIEW OF RACE AND HISPANIC ORIGIN: 2010, at 3
(2011), http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf (reporting that in 2010,
“there were 50.5 million Hispanics in the United States, composing 16 percent of the total
population”). However, national statistics indicate that Hispanics have similar or lower drug
usage rates compared to Whites. See, e.g., SUBSTANCE ABUSE & MENTAL HEALTH SERVS.

36

ADMIN., U.S. DEP’T OF HEALTH & HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY
ON DRUG USE AND HEALTH: SUMMARY OF NATIONAL FINDINGS 21, Figure 2.10 (2011),
http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pdf (reporting, for example, that the
usage rate for Hispanics in 2009 was 7.9% compared to 8.8% for Whites).
68

See, e.g., HUMAN RIGHTS WATCH, DECADES OF DISPARITY: DRUG ARRESTS AND RACE IN
THE UNITED STATES 1 (2009), http://www.hrw.org/sites/default/files/reports/us0309web_1.pdf
(noting that the "[t]he higher rates of black drug arrests do not reflect higher rates of black drug
offending . . . . blacks and whites engage in drug offenses - possession and sales - at roughly
comparable rates"); SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP'T OF
HEALTH & HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY ON DRUG USE AND
HEALTH: SUMMARY OF NATIONAL FINDINGS 21 (2011),
http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pdf (reporting that in 2010, the rates
of illicit drug use in the United States among persons aged 12 or older were 10.7% for African
Americans, 9.1% for Whites, and 8.1% for Hispanics); HARRY LEVINE & DEBORAH SMALL,
N.Y. CIVIL LIBERTIES UNION, MARIJUANA ARREST CRUSADE: RACIAL BIAS AND POLICE POLICY
IN NEW YORK CITY, 1997–2007, at 13–16 (2008), www.nyclu.org/files/MARIJUANA-ARRESTCRUSADE_Final.pdf (citing U.S. Government surveys showing that Whites use marijuana at
higher rates than African Americans and Hispanics; however, the marijuana arrest rate of
Hispanics is nearly three times the arrest rate of Whites, and the marijuana arrest rate of African
Americans is five times the arrest rate of Whites).
69

PREVALENCE OF IMPRISONMENT, supra note 4, at 1, 8. Due to the nature of available data,
the Commission is using incarceration data as a proxy for conviction data.
70

Id.

71

Id.

72

MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, UNEVEN JUSTICE: STATE
RATES OF INCARCERATION BY RACE AND ETHNICITY 10 (2007),
www.sentencingproject.org/Admin%5CDocuments%5Cpublications%5Crd_stateratesofincbyrac
eandethnicity.pdf.
73

Id.

74

PAUL GUERINO ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
PRISONERS IN 2010, at 27, Table 14 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf
(reporting that as of December 31, 2010, Black men were imprisoned at a rate of 3,074 per
100,000 Black male residents, Hispanic men were imprisoned at a rate of 1,258 per 100,000
Hispanic male residents, and White men were imprisoned at a rate of 459 per 100,000 White
male residents); cf. ONE IN 31, supra note 4, at 5 (“Black adults are four times as likely as whites
and nearly 2.5 times as likely as Hispanics to be under correctional control. One in 11 black
adults -- 9.2 percent -- was under correctional control [probation, parole, prison, or jail] at year
end 2007.”).

37

75

The Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. part 1607,
provide that “[employers] should maintain and have available . . . information on [the] adverse
impact of [their employment selection procedures].” 29 C.F.R. § 1607.15A. “Where [an
employer] has not maintained [such records, the EEOC] may draw an inference of adverse
impact of the selection process from the failure of [the employer] to maintain such data . . . .” Id.
§ 1607.4D.
76

See, e.g., El v. SEPTA, 418 F. Supp. 2d 659, 668–69 (E.D. Pa. 2005) (finding that the
plaintiff established a prima facie case of disparate impact with evidence from the defendant’s
personnel records and national data sources from the U.S. Bureau of Justice Statistics and the
Statistical Abstract of the U.S.), aff’d on other grounds, 479 F.3d 232 (3d Cir. 2007); Green v.
Mo. Pac. R.R., 523 F.2d 1290, 1294–95 (8th Cir. 1975) (concluding that the defendant’s criminal
record exclusion policy had a disparate impact based on race by evaluating local population
statistics and applicant data), appeal after remand, 549 F.2d 1158, 1160 (8th Cir. 1977).
77

457 U.S. 440, 442 (1982).

78

Id. at 453–54

79

433 U.S. 321, 330 (1977).

80

See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) (stating that
“[a] consistently enforced discriminatory policy can surely deter job applications from those who
are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain
rejection”).
81

42 U.S.C. § 2000e-2(k)(1)(A)(i). See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
See also 42 U.S.C. § 2000e(m) (defining the term “demonstrates” to mean “meets the burdens of
production and persuasion”).
82

422 U.S. 405 (1975).

83

433 U.S. 321 (1977).

84

137 CONG. REC. 15273 (1991) (statement of Sen. Danforth) (“[T]he terms ‘business
necessity’ and ‘job related’ are intended to reflect the concepts enunciated by the Supreme Court
in Griggs v. Duke Power Co, and in the other Supreme Court decisions prior to Wards Cove
Packing Co. v. Atonio.” (citations omitted)). Section 105(b) of the Civil Rights Act of 1991
provides that only the interpretive memorandum read by Senator Danforth in the Congressional
Record may be considered legislative history or relied upon in construing or applying the
business necessity standard.
85

401 U.S. at 431, 436.

38

86

422 U.S. at 430–31 (endorsing the EEOC’s position that discriminatory tests are
impermissible unless shown, by professionally acceptable methods, to predict or correlate with
“‘important elements of work behavior which comprise or are relevant to the job or jobs for
which candidates are being evaluated’” (quoting 29 C.F.R. § 1607.4(c))).
87

433 U.S. at 331–32 (concluding that using height and weight as proxies for strength did
not satisfy the business necessity defense because the employer failed to establish a correlation
between height and weight and the necessary strength, and also did not specify the amount of
strength necessary to perform the job safely and efficiently).
88

Id. at 331 n.14.

89

523 F.2d 1290, 1293 (8th Cir. 1975). “In response to a question on an application form,
Green [a 29-year-old African American man] disclosed that he had been convicted in December
1967 for refusing military induction. He stated that he had served 21 months in prison until
paroled on July 24, 1970.” Id. at 1292–93.
90

Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977) (upholding the district
court’s injunction prohibiting the employer from using an applicant’s conviction record as an
absolute bar to employment but allowing it to consider a prior criminal record as a factor in
making individual hiring decisions, as long as the defendant took these three factors into
account).
91

Id. (referring to completion of the sentence rather than completion of parole).

92

Id.

93

479 F.3d 232 (3d Cir. 2007).

94

Id. at 235.

95

Id. at 235, 236.

96

Id. at 235.

97

Id. at 244.

98

Id. at 244–45.

99

Id. at 247. Cf. Shawn Bushway et al., The Predictive Value of Criminal Background
Checks: Do Age and Criminal History Affect Time to Redemption?, 49 CRIMINOLOGY 27, 52
(2011) [hereinafter The Predictive Value of Criminal Background Checks] (“Given the results of
the current as well as previous [recidivism] studies, the 40-year period put forward in El v.
SEPTA (2007) . . . seems too old of a score to be still in need of settlement.”).

39

100

El, 479 F.3d at 248.

101

Some states have enacted laws to limit employer inquiries concerning all or some arrest
records. See BACKGROUND CHECKS, supra note 25, at 48–49. At least 13 states have statutes
explicitly prohibiting arrest record inquiries and/or dissemination subject to certain exceptions.
See, e.g., Alaska (ALASKA STAT. § 12.62.160(b)(8)); Arkansas (ARK. CODE ANN. § 12-121009(c)); California (CAL. LAB. CODE § 432.7(a)); Connecticut (CONN. GEN. STAT. § 46a-80(e));
Illinois (775 ILL. COMP. STAT. § 5/2-103(A)) (dealing with arrest records that have been ordered
expunged, sealed, or impounded); Massachusetts (MASS. GEN. LAWS ch. 151B § 4(9)); Michigan
(MICH COMP. LAWS § 37.2205a(1) (applying to misdemeanor arrests only)); Nebraska (NEB.
REV. STAT. § 29-3523(2)) (ordering no dissemination of arrest records under certain conditions
and specified time periods)); New York (N.Y. EXEC. LAW § 296(16)); North Dakota (N.D. CENT.
CODE § 12-60-16.6(2)); Pennsylvania (18 PA. CONS. STAT. § 9121(b)(2)); Rhode Island (R.I.
GEN. LAWS § 28-5-7(7)), and Wisconsin (WIS. STAT. §§ 111.321, 111.335a).
102

See United States v. Armstrong, 517 U.S. 456, 464 (1996) (discussing federal
prosecutors’ broad discretionary authority to determine whether to prosecute cases and whether
to bring charges before a grand jury); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)
(explaining same for state prosecutors); see also THOMAS H. COHEN & TRACEY KYCKELHAHN,
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN
COUNTIES, 2006, at 10, Table 11 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf
(reporting that in the 75 largest counties in the country, nearly one-third of the felony arrests did
not result in a conviction because the charges against the defendants were dismissed).
103

Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 241 (1957) (“The mere fact that a [person]
has been arrested has very little, if any, probative value in showing that he has engaged in any
misconduct.”); United States. v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006) (upholding a
preliminary jury instruction that stated that a “defendant is presumed to be innocent unless
proven guilty. The indictment against the Defendant is only an accusation, nothing more. It’s
not proof of guilt or anything else.”); see Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403
(C.D. Cal. 1970) (“[I]nformation concerning a prospective employee’s record of arrests without
convictions, is irrelevant to [an applicant’s] suitability or qualification for employment.”),
modified on other grounds, 472 F.2d 631 (9th Cir. 1972); Dozier v. Chupka, 395 F. Supp. 836,
850 n.10 (S.D. Ohio 1975) (stating that the use of arrest records was too crude a predictor of an
employee’s predilection for theft where there were no procedural safeguards to prevent reliance
on unwarranted arrests); City of Cairo v. Ill. Fair Empl. Prac. Comm., 8 Empl. Prac. Dec. (CCH)
& 9682 (Ill. App. Ct. 1974) (concluding that, where applicants sought to become police officers,
they could not be absolutely barred from appointment solely because they had been arrested, as
distinguished from convicted); see also EEOC Dec. 74-83, ¶ 6424 (CCH) (1983) (finding no
business justification for an employer’s unconditional termination of all employees with arrest
records (all five employees terminated were Black), purportedly to reduce thefts in the
workplace; the employer produced no evidence that these particular employees had been
involved in any of the thefts, or that all people who are arrested but not convicted are prone
towards crime in the future); EEOC Dec. 76-87, ¶ 6665 (CCH) (1983) (holding that an applicant
who sought to become a police officer could not be rejected based on one arrest five years earlier

40

for riding in a stolen car when he asserted that he did not know that the car was stolen and the
charge was dismissed).
104

See STATE CRIMINAL HISTORY, supra note 37, at 2; see also BACKGROUND CHECKS,
supra note 25, at 17.
105

See supra notes 39–40.

106

See Clark v. Arizona, 548 U.S. 735, 766 (2006) (“The first presumption [in a criminal
case] is that a defendant is innocent unless and until the government proves beyond a reasonable
doubt each element of the offense charged. . . .”). See also FED. R. CRIM P 11 (criminal procedure
rule governing pleas). The Supreme Court has concluded that criminal defendants have a Sixth
Amendment right to effective assistance of counsel during plea negotiations. See generally
Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012).
107

See supra text accompanying note 39.

108

See e.g., HAW. REV. STAT. § 378-2.5(b). Under this provision, the employer may
withdraw the offer of employment if the prospective employee has a conviction record “that
bears a rational relationship to the duties and responsibilities of the position.” Id. See also
CONN. GEN. STAT. § 46a-80(b) (“[N]o employer . . . shall inquire about a prospective employee’s
past convictions until such prospective employee has been deemed otherwise qualified for the
position.”); MINN. STAT. § 364.021(a) (“[A] public employer may not inquire or consider the
criminal record or criminal history of an applicant for public employment until the applicant has
been selected for an interview by the employer.”). State fair employment practices agencies
have information about applicable state law.
109

See generally NAT’L LEAGUE OF CITIES & NAT’L EMP’T LAW PROJECT, CITIES PAVE THE
WAY: PROMISING REENTRY POLICIES THAT PROMOTE LOCAL HIRING OF PEOPLE WITH CRIMINAL
RECORDS (2010), www.nelp.org/page/-/SCLP/2010/CitiesPavetheWay.pdf?nocdn=1 (identifying
local initiatives that address ways to increase employment opportunities for individuals with
criminal records, including delaying a background check until the final stages of the hiring
process, leveraging development funds, and expanding bid incentive programs to promote local
hiring priorities); NAT’L EMP’T LAW PROJECT, CITY AND COUNTY HIRING INITIATIVES (2010),
www.nelp.org/page/-/SCLP/CityandCountyHiringInitiatives.pdf (discussing the various city and
county initiatives that have removed questions regarding criminal history from the job
application and have waited until after a conditional offer of employment has been made to
conduct a background check and inquire about the applicant’s criminal background).
110

Several federal laws automatically prohibit employing individuals with certain felony
convictions or, in some cases, misdemeanor convictions. See, e.g., 5 U.S.C. § 7371(b) (requiring
the mandatory removal of any federal law enforcement officer who is convicted of a felony); 46
U.S.C. § 70105(c)(1)(A) (mandating that individuals who have been convicted of espionage,
sedition, treason or terrorism be permanently disqualified from receiving a biometric
transportation security card and thereby excluded from port work employment); 42 U.S.C.

41

§ 13726(b)(1) (disqualifying persons with felony convictions or domestic violence convictions
from working for a private prisoner transport company); 25 U.S.C. § 3207(b) (prohibiting
individuals with a felony conviction, or any of two or more misdemeanor convictions, from
working with Indian children if their convictions involved crimes of violence, sexual assault,
molestation, exploitation, contact or prostitution, crimes against persons, or offenses committed
against children); 18 U.S.C. § 922(g)(1), (9) (prohibiting an individual convicted of a felony or a
misdemeanor for domestic violence from possessing a firearm, thereby excluding such individual
from a wide range of jobs that require such possession); 18 U.S.C. § 2381 (prohibiting
individuals convicted of treason from “holding any office under the United States”). Other
federal laws prohibit employing individuals with certain convictions for a defined time period.
See, e.g., 5 U.S.C. § 7313(a) (prohibiting individuals convicted of a felony for inciting a riot or
civil disorder from holding any position in the federal government for five years after the date of
the conviction); 12 U.S.C. § 1829 (requiring a ten-year ban on employing individuals in banks if
they have certain financial-related convictions); 49 U.S.C. § 44936(b)(1)(B) (imposing a ten-year
ban on employing an individual as a security screener for an air carrier if that individuals has
been convicted of specified crimes).
111

See 29 C.F.R. § 1607.5 (describing the general standards for validity studies).

112

Id.

113

Id. § 1607.6B. The following subsections state:
(1)

Where informal or unscored procedures are used. When an informal or
unscored selection procedure which has an adverse impact is utilized, the user
should eliminate the adverse impact, or modify the procedure to one which is a
formal, scored or quantified measure or combination of measures and then
validate the procedure in accord with these guidelines, or otherwise justify
continued use of the procedure in accord with Federal law.
(2) Where formal and scored procedures are used. When a formal and scored
selection procedure is used which has an adverse impact, the validation
techniques contemplated by these guidelines usually should be followed if
technically feasible. Where the user cannot or need not follow the validation
techniques anticipated by these guidelines, the user should either modify the
procedure to eliminate adverse impact or otherwise justify continued use of the
procedure in accord with Federal law.
Id. § 1607.6A, B(1)–(2).
114

See, e.g., Brent W. Roberts et al., Predicting the Counterproductive Employee in a Childto-Adult Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1430 (2007),
http://internal.psychology.illinois.edu/~broberts/Roberts,%20Harms,%20Caspi,%20&%20Moffit
t,%202007.pdf (finding that in a study of New Zealand residents from birth to age 26,
“[a]dolescent criminal convictions were unrelated to committing counterproductive activities at
work [such as tardiness, absenteeism, disciplinary problems, etc.]. In fact, according to the

42

[results of the study], people with an adolescent criminal conviction record were less likely to get
in a fight with their supervisor or steal things from work.”).
115

See OHIO REV. CODE ANN. § 2913.02.

116

523 F.2d at 1298 (stating that “[w]e cannot conceive of any business necessity that would
automatically place every individual convicted of any offense, except a minor traffic offense, in
the permanent ranks of the unemployed”).

117

479 F.3d at 247.

118

See, e.g., Keith Soothill & Brian Francis, When do Ex-Offenders Become Like NonOffenders?, 48 HOWARD J. OF CRIM. JUST., 373, 380–81 (2009) (examining conviction data from
Britain and Wales, a 2009 study found that the risk of recidivism declined for the groups with
prior records and eventually converged within 10 to 15 years with the risk of those of the
nonoffending comparison groups); Alfred Blumstein & Kiminori Nakamura, Redemption in the
Presence of Widespread Criminal Background Checks, 47 CRIMINOLOGY 327 (2009)
(concluding that there may be a “point of redemption” (i.e., a point in time where an individual’s
risk of re-offending or re-arrest is reasonably comparable to individuals with no prior criminal
record) for individuals arrested for certain offenses if they remain crime free for a certain number
of years); Megan C. Kurlychek, Robert Brame & Shawn D. Bushway, Enduring Risk? Old
Criminal Records and Predictions of Future Criminal Involvement, 53 CRIME & DELINQUENCY
64 (2007) (analyzing juvenile police contacts and Racine, Wisconsin police contacts for an
aggregate of crimes for 670 males born in 1942 and concluding that, after seven years, the risk of
a new offense approximates that of a person without a criminal record); Megan C. Kurlychek et
al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5
CRIMINOLOGY & PUB. POL’Y 483 (2006) (evaluating juvenile police contacts and arrest dates
from Philadelphia police records for an aggregate of crimes for individuals born in 1958, a 2006
study concluded that the risk of recidivism decreases over time and that, six or seven years after
an arrest, an individual’s risk of re-arrest approximates that of an individual who has never been
arrested).
119

Griggs, 401 U.S. at 431.

120

523 F.2d at 1298; see also Field v. Orkin Extermination Co., No. Civ. A. 00-5913, 2002
WL 32345739, at *1 (E.D. Pa. Feb. 21, 2002) (unpublished) (“[A] blanket policy of denying
employment to any person having a criminal conviction is a [per se] violation of Title VII.”).
The only exception would be if such an exclusion were required by federal law or regulation.
See, e.g., supra note 110.

121

Cf. Field, 2002 WL 32345739, at *1. In Field, an employee of ten years was fired after a
new company that acquired her former employer discovered her 6-year-old felony conviction.
The new company had a blanket policy of firing anyone with a felony conviction less than 10
years old. The court granted summary judgment for the employee because the employer’s
argument that her conviction was related to her job qualifications was “weak at best,” especially

43

given her positive employment history with her former employer. Id.
122

Recidivism rates tend to decline as ex-offenders’ ages increase. A 2011 study found that
an individual’s age at conviction is a variable that has a “substantial and significant impact on
recidivism.” The Predictive Value of Criminal Background Checks, supra note 99, at 43. For
example, the 26-year-olds in the study, with no prior criminal convictions, had a 19.6% chance
of reoffending in their first year after their first conviction, compared to the 36-year-olds who
had an 8.8% chance of reoffending during the same time period, and the 46-year-olds who had a
5.3% of reoffending. Id. at 46. See also PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: RECIDIVISM OF PRISONERS
RELEASED IN 1994, at 7 (2002), http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf (finding that,
although 55.7% of ex-offenders aged 14–17 released in 1994 were reconvicted within three
years, the percentage declined to 29.7% for ex-offenders aged 45 and older who were released
the same year).
Consideration of an applicant’s age at the time the offense occurred or at his release from
prison would benefit older individuals and, therefore, would not violate the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. See Age Discrimination in
Employment Act, 29 C.F.R. § 1625.2 (“Favoring an older individual over a younger individual
because of age is not unlawful discrimination under the ADEA, even if the younger individual is
at least 40 years old.”); see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600
(2004) (concluding that the ADEA does not preclude an employer from favoring an older
employee over a younger one within the protected age group).
123

See Laura Moskowitz, Statement of Laura Moskowitz, Staff Attorney, National
Employment Law Project’s Second Chance Labor Project, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/11-20-08/moskowitz.cfm (last visited April 23,
2012) (stating that one of the factors that is relevant to the assessment of an ex-offender’s risk to
a workplace and to the business necessity analysis, is the “length and consistency of the person’s
work history, including whether the person has been recently employed”; also noting that various
studies have “shown a strong relationship between employment and decreases in crime and
recidivism”). But see Stephen J. Tripodi et al., Is Employment Associated With Reduced
Recidivism?: The Complex Relationship Between Employment and Crime, 54 INT’L J. OF
OFFENDER THERAPY AND COMP. CRIMINOLOGY 716, 716 (2010) (finding that “[b]ecoming
employed after incarceration, although apparently providing initial motivation to desist from
crime, does not seem to be on its own sufficient to prevent recidivism for many parolees”).
124

See WENDY ERISMAN & JEANNE BAYER CONTARDO, INST. FOR HIGHER EDUC. POLICY,
LEARNING TO REDUCE RECIDIVISM: A 50 STATE ANALYSIS OF POSTSECONDARY CORRECTIONAL
EDUCATION 5 (2005), http://www.ihep.org/assets/files/publications/gl/LearningReduceRecidivism.pdf (finding that increasing higher education for prisoners
enhances their prospects for employment and serves as a cost-effective approach to reducing
recidivism); see also John H. Laud & Robert J. Sampson, Understanding Desistance from
Crime, 28 CRIME & JUST. 1, 17–24 (2001), http://www.ncjrs.gov/pdffiles1/Digitization/192542192549NCJRS.pdf (stating that factors associated with personal rehabilitation and social

44

stability, such as stable employment, family and community involvement, and recovery from
substance abuse, are correlated with a decreased risk of recidivism).
125

Some employers have expressed a greater willingness to hire ex-offenders who have had
an ongoing relationship with third party intermediary agencies that provide supportive services
such as drug testing, referrals for social services, transportation, child care, clothing, and food.
See Amy L. Solomon et al., From Prison to Work: The Employment Dimensions of Prisoner
Reentry, 2004 URBAN INST. 20,
http://www.urban.org/UploadedPDF/411097_From_Prison_to_Work.pdf. These types of
services can help ex-offenders avoid problems that may interfere with their ability to obtain and
maintain employment. Id.; see generally Victoria Kane, Transcript of 7-26-11 Meeting, U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/7-2611/transcript.cfm#kane (last visited April 23, 2012) (describing why employers should partner
with organizations that provide supportive services to ex-offenders).
126

See generally REENTRY MYTHBUSTER! ON FEDERAL BONDING PROGRAM, supra note 16;
Work Opportunity Tax Credit (WOTC), EMP’T & TRAINING ADMIN., U.S. DEP’T OF LABOR,
http://www.doleta.gov/business/incentives/opptax/ (last visited April 3, 2012); Directory of State
Bonding Coordinators, EMP’T & TRAINING ADMIN., U.S. DEP’T OF LABOR,
http://www.doleta.gov/usworkforce/onestop/FBPContact.cfm (last visited April 3, 2012);
Federal Bonding Program - Background, U.S. DEP’T OF LABOR,
http://www.bonds4jobs.com/program-background.html (last visited April 3, 2012); Bureau of
Prisons: UNICOR’s Federal Bonding Program,
http://www.bop.gov/inmate_programs/itb_bonding.jsp (last visited April 3, 2012).
127

This example is loosely based on a study conducted by Alfred Blumstein and Kiminori
Nakamura measuring the risk of recidivism for individuals who have committed burglary,
robbery, or aggravated assault. See Blumstein & Nakamura, supra note 118.

128

42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C). See also Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 998 (1988).

129

See Exec. Order No. 12,067, 3 C.F.R. 206 (1978 Comp.).

130

See 49 U.S.C. §§ 44935(e)(2)(B), 44936(a)(1), (b)(1). The statute mandates a criminal
background check.

131

See 5 U.S.C. § 7371(b) (requiring mandatory removal from employment of law
enforcement officers convicted of felonies).

132

See 42 U.S.C. § 13041(c) (“Any conviction for a sex crime, an offense involving a child
victim, or a drug felony may be grounds for denying employment or for dismissal of an
employee. . . .”).

133

12 U.S.C. § 1829.

45

134

46 U.S.C. § 70105(c).

135

Other jobs and programs subject to federally-imposed restrictions based on criminal
convictions include the business of insurance (18 U.S.C. § 1033(e)), employee benefits employee
(29 U.S.C. § 1111(a)), participation in Medicare and state health care programs (42 U.S.C.
§ 1320a-7(a)–(b)), defense contractor (10 U.S.C. § 2408(a)), prisoner transportation (42 U.S.C.
§ 13726b(b)(1)), and court-imposed occupational restrictions (18 U.S.C. §§ 3563(b)(5),
3583(d)). This list is not meant to be exhaustive.
136

See, e.g., federal statutes governing commercial motor vehicle operator’s licenses (49
U.S.C. § 31310(b)-(h)), locomotive operator licenses (49 U.S.C. § 20135(b)(4)(B)), and
certificates, ratings, and authorizations for pilots, flight instructors, and ground instructors (49
U.S.C. §§ 44709(b)(2), 44710(b), 4711(c); 14 C.F.R. § 61.15).

137

See, e.g., federal statutes governing loan originator licensing/registration (12 U.S.C.
§ 5104(b)(2)), registration of brokers and dealers (15 U.S.C. § 78o(b)(4)(B)), registration of
commodity dealers (7 U.S.C. § 12a(2)(D), (3)(D), (E), (H)), and registration of investment
advisers (15 U.S.C. § 80b-3(e)(2)-(3), (f)).

138

See, e.g., custom broker’s licenses (19 U.S.C. § 1641(d)(1)(B)), export licenses (50
U.S.C. App. § 2410(h)), and arms export (22 U.S.C. § 2778(g)).

139

See, e.g., grain inspector’s licenses (7 U.S.C. § 85), merchant mariner’s documents,
licenses, or certificates of registry (46 U.S.C. § 7503(b)), licenses to import, manufacture, or deal
in explosives or permits to use explosives (18 U.S.C. § 843(d)), and farm labor contractor’s
certificates of registration (29 U.S.C. § 1813(a)(5)). This list of federally-imposed restrictions on
occupational licenses and registrations for individuals with certain criminal convictions is not
meant to be exhaustive. For additional information, please consult the relevant federal agency or
department.
140

See 12 U.S.C. § 1829(a)(1). The statute imposes a ten-year ban for individuals who have
been convicted of certain financial crimes such as corruption involving the receipt of
commissions or gifts for procuring loans (18 U.S.C. § 215), embezzlement or theft by an
officer/employee of a lending, credit, or insurance institution (18 U.S.C § 657), false or
fraudulent statements by an officer/employee of the federal reserve or a depository institution (18
U.S.C. § 1005), or fraud by wire, radio, or television that affects a financial institution (18 U.S.C.
§ 1343), among other crimes. See 12 U.S.C. § 1829(a)(2)(A)(i)(I), (II). Individuals who have
either been convicted of the crimes listed in § 1829(a)(2)(A), or conspiracy to commit those
crimes, will not receive an exception to the application of the 10-year ban from the FDIC. 12
U.S.C. § 1829(a)(2)(A).

141

See FED. DEPOSIT INS. CORP., FDIC STATEMENT OF POLICY FOR SECTION 19 OF THE FDI
ACT, § C, “PROCEDURES” (amended May 13, 2011),
http://www.fdic.gov/regulations/laws/rules/5000-1300.html [hereinafter FDIC POLICY]; see also

46

Statement of Policy, 63 Fed. Reg. 66,177, 66,184 (Dec. 1, 1998); Clarification of Statement of
Policy, 76 Fed. Reg. 28,031 (May 13, 2011) (clarifying the FDIC’s Statement of Policy for
Section 19 of the FDI Act).
“Approval is automatically granted and an application [for a waiver] will not be required
where [an individual who has been convicted of] the covered offense [criminal offenses
involving dishonesty, breach of trust, or money laundering] . . . meets all of the [“de minimis”]
criteria” set forth in the FDIC’s Statement of Policy. FDIC POLICY, supra, § B (5). These
criteria include the following: (1) there is only one conviction or program of record for a covered
offense; (2) the offense was punishable by imprisonment for a term of one year or less and/or a
fine of $1,000 or less, and the individual did not serve time in jail; (3) the conviction or program
was entered at least five years prior to the date an application would otherwise be required; and
(4) the offense did not involve an insured depository institution or insured credit union. Id.
Additionally, an individual’s conviction for writing a “bad” check will be considered a de
minimis offense, even if it involved an insured depository institution or insured credit union, if:
(1) all other requirements of the de minimis offense provisions are met; (2) the aggregate total
face value of the bad or insufficient funds check(s) cited in the conviction was $1000 or less; and
(3) no insured depository institution or insured credit union was a payee on any of the bad or
insufficient funds checks that were the basis of the conviction. Id.
142

See FDIC POLICY, supra note 141, § C, “PROCEDURES.”

143

Id. But cf. NAT’L H.I.R.E. NETWORK, PEOPLE WITH CRIMINAL RECORDS WORKING IN
FINANCIAL INSTITUTIONS: THE RULES ON FDIC WAIVERS,
http://www.hirenetwork.org/FDIC.html (“Institutions rarely seek a waiver, except for higher
level positions when the candidate is someone the institution wants to hire. Individuals can only
seek FDIC approval themselves if they ask the FDIC to waive the usual requirement. Most
individuals probably are unaware that they have this right.”); FED. DEPOSIT INSUR. CORP. 2010
ANNUAL REPORT, § VI.A: KEY STATISTICS, FDIC ACTIONS ON FINANCIAL INSTITUTION
APPLICATIONS 2008–2010 (2011),
http://www.fdic.gov/about/strategic/report/2010annualreport/chpt6-01.html (reporting that
between 2008 and 2010, the FDIC approved a total of 38 requests for consent to employ
individuals with covered offenses in their background; the agency did not deny any requests
during this time period).
144

FDIC POLICY, supra note 141, § D, “EVALUATION OF SECTION 19 APPLICATIONS” (listing
the factors that are considered in this waiver review process, which include: (1) the nature and
circumstances underlying the offense; (2) “[e]vidence of rehabilitation including the person’s
reputation since the conviction . . . the person’s age at the time of conviction . . . and the time
which has elapsed since the conviction”; (3) the position to be held in the insured institution; (4)
the amount of influence/control the individual will be able to exercise over management affairs;
(5) management’s ability to control and supervise the individual’s activities; (6) the degree of
ownership the individual will have in the insured institution; (7) whether the institution’s fidelity
bond coverage applies to the individual; (8) the opinion of the applicable federal and/or state
regulators; and (9) any other relevant factors).

47

145

See 49 C.F.R. §§ 1515.7 (describing the procedures for waiver of criminal offenses,
among other standards), 1515.5 (explaining how to appeal the Initial Determination of Threat
Assessment based on a criminal conviction). In practice, some worker advocacy groups have
criticized the TWIC appeal process due to prolonged delays, which leaves many workers jobless;
especially workers of color. See generally MAURICE EMSELLEM ET AL., NAT’L EMP’T LAW
PROJECT, A SCORECARD ON THE POST-911 PORT WORKER BACKGROUND CHECKS: MODEL
WORKER PROTECTIONS PROVIDE A LIFELINE FOR PEOPLE OF COLOR, WHILE MAJOR TSA DELAYS
LEAVE THOUSANDS JOBLESS DURING THE RECESSION (2009),
http://nelp.3cdn.net/2d5508b4cec6e13da6_upm6b20e5.pdf.
The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 6201, 124 Stat.
721 (2010) (the Act) includes a process to appeal or dispute the accuracy of information obtained
from criminal records. The Act requires participating states to perform background checks on
applicants and current employees who have direct access to patients in long-term care facilities,
such as nursing homes, to determine if they have been convicted of an offense or have other
disqualifying information in their background, such as a finding of patient or resident abuse, that
would disqualify them from employment under the Social Security Act or as specified by state
law. See 42 U.S.C. § 1320a-7l(a)(3)(A), (a)(4)(B), (6)(A)–(E). The background check involves
an individualized assessment of the relevance of a conviction or other disqualifying information.
The Act protects applicants and employees in several ways, for example, by: (1) providing a 60day provisional period of employment for the prospective employee, pending the completion of
the criminal records check; (2) providing an independent process to appeal or dispute the
accuracy of the information obtained in the criminal records check; and (3) allowing the
employee to remain employed (subject to direct on-site supervision) during the appeals process.
42 U.S.C. § 1320a-7l(a)(4)(B)(iii), (iv).
146

See 46 U.S.C. § 70105(d); see generally TWIC Program, 49 C.F.R. § 1572.103 (listing
the disqualifying offenses for maritime and land transportation security credentials, such as
convictions and findings of not guilty by reason of insanity for espionage, murder, or unlawful
possession of an explosive; also listing temporarily disqualifying offenses, within seven years of
conviction or five years of release from incarceration, including dishonesty, fraud, or
misrepresentation (expressly excluding welfare fraud and passing bad checks), firearms
violations, and distribution, intent to distribute, or importation of controlled substances).

147

46 U.S.C. § 70105(c)(1)(A)–(B).

148

46 U.S.C. § 70105(c)(1)(B)(iii).

149

See 46 U.S.C. § 70105(c)(1)(A)(iv) (listing “Federal crime of terrorism” as a permanent
disqualifying offense); see also 18 U.S.C. § 2332b(g)(5)(B) (defining “Federal crime of
terrorism” to include the use of weapons of mass destruction under § 2332a).

150

See 49 C.F.R. § 1515.7(a)(i) (explaining that only certain applicants with disqualifying
crimes in their backgrounds may apply for a waiver; these applicants do not include individuals

48

who have been convicted of a Federal crime of terrorism as defined by 18 U.S.C. § 2332b(g)).
151

These positions are defined as “national security positions” and include positions that
“involve activities of the Government that are concerned with the protection of the nation from
foreign aggression or espionage, including development of defense plans or policies, intelligence
or counterintelligence activities, and related activities concerned with the preservation of the
military strength of the United States” or “require regular use of, or access to, classified
information.” 5 C.F.R. § 732.102(a)(1)–(2). The requirements for “national security positions”
apply to competitive service positions, Senior Executive Service positions filled by career
appointment within the Executive Branch, and excepted service positions within the Executive
Branch. Id. § 732.102(b). The head of each Federal agency can designate any position within
that department or agency as a “sensitive position” if the position “could bring about, by virtue
of the nature of the position, a material adverse effect on the national security.” Id. § 732.201(a).
Designation of a position as a “sensitive position” will fall under one of three sensitivity levels:
Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive. Id.
152

See Exec. Order No. 12,968, § 3.1(b), 3 C.F.R. 391 (1995 Comp.):
[E]ligibility for access to classified information shall be granted only to
employees who are United States citizens for whom an appropriate
investigation has been completed and whose personal and professional
history affirmatively indicates loyalty to the United States, strength of
character, trustworthiness, honestly, reliability, discretion, and sound
judgment, as well as freedom from conflicting allegiances and potential
for coercion, and willingness and ability to abide by regulations governing
the use, handling, and protection of classified information. A
determination of eligibility for access to such information is a
discretionary security decision based on judgments by appropriately
trained adjudicative personnel. Eligibility shall be granted only where
facts and circumstances indicate access to classified information is clearly
consistent with the national security interests of the United States, and any
doubt shall be resolved in favor of the national security.

153

42 U.S.C. § 2000e-2(g); see, e.g., Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir.
2005) (“[E]mployment actions based on denial of a security clearance are not subject to judicial
review, including under Title VII.”); Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (“[A]n
adverse employment action based on denial or revocation of a security clearance is not
actionable under Title VII.”).
154

See Policy Guidance on the use of the national security exception contained in § 703(g)
of Title VII of the Civil Rights Act of 1964, as amended, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, § II, Legislative History (May 1, 1989),
http://www.eeoc.gov/policy/docs/national_security_exemption.html (“[N]ational security
requirements must be applied equally without regard to race, sex, color, religion or national
origin.”); see also Jones v. Ashcroft, 321 F. Supp. 2d 1, 8 (D.D.C. 2004) (indicating that the

49

national security exception did not apply because there was no evidence that the government
considered national security as a basis for its decision not to hire the plaintiff at any time before
the commencement of the plaintiff’s lawsuit, where the plaintiff had not been forthright about an
arrest).
155

Federal contractor employees may challenge the denial of a security clearance with the
EEOC or the Office of Contract Compliance Programs when the denial is based on race, color,
religion, sex, or national origin. See generally Exec. Order No. 11,246, 3 C.F.R. 339 (1964–1965
Comp.).
156

42 U.S.C. § 2000e-16(a).

157

Robert H. Shriver, III, Written Testimony of Robert H. Shriver, III, Senior Policy Counsel
for the U.S. Office of Personnel Management, U.S. EQUAL EMP’T OPPORTUNITY COMM’N,
http://www.eeoc.gov/eeoc/meetings/7-26-11/shriver.cfm (last visited April 23, 2012) (stating
that “with just a few exceptions, criminal convictions do not automatically disqualify an
applicant from employment in the competitive civil service”); see also REENTRY MYTHBUSTER!
ON FEDERAL HIRING POLICIES, supra note 16 (“The Federal Government employs people with
criminal records with the requisite knowledge, skills and abilities.”). But see supra note 110,
listing several federal statutes that prohibit individuals with certain convictions from working as
federal law enforcement officers or port workers, or with private prisoner transport companies.
158

OPM has jurisdiction to establish the federal government’s suitability policy for
competitive service positions, certain excepted service positions, and career appointments in the
Senior Executive Service. See 5 C.F.R. §§ 731.101(a) (stating that OPM has been directed “to
examine ‘suitability’ for competitive Federal employment”), 731.101(b) (defining the covered
positions within OPM’s jurisdiction); see also Shriver, supra note 157.
OPM is also responsible for establishing standards that help agencies decide whether to
grant their employees and contractor personnel long-term access to federal facilities and
information systems. See Homeland Security Presidential Directive 12: Policy for a Common
Identification Standard for Federal Employees and Contractors, 2 PUB. PAPERS 1765 (Aug. 27,
2004) (“establishing a mandatory, Government-wide standard for secure and reliable forms of
identification issued by the Federal Government to its employees and contractors [including
contractor employees]”); see also Exec. Order No. 13,467, § 2.3(b), 3 C.F.R. 196 (2009 Comp.)
(“[T]he Director of [OPM] . . . [is] responsible for developing and implementing uniform and
consistent policies and procedures to ensure the effective, efficient, and timely completion of
investigations and adjudications relating to determinations of suitability and eligibility for logical
and physical access.”); see generally Shriver, supra note 157.
159

5 C.F.R. § 731.101(a).

160

See 5 C.F.R. §§ 731.205(a) (stating that if an agency finds applicants unsuitable based on
the factors listed in 5 C.F.R. § 731.202, it may, in its discretion, bar those applicants from federal
employment for three years), § 731.202(b) (disqualifying factors from federal civilian

50

employment may include: misconduct or negligence in employment; material, intentional false
statement, or deception or fraud in examination or appointment; refusal to furnish testimony as
required by 5 C.F.R. § 5.4; alcohol abuse without evidence of substantial rehabilitation; illegal
use of narcotics, drugs, or other controlled substances; and knowing and willful engagement in
acts or activities designed to overthrow the U.S. Government by force).
161

See id. § 731.202(c).

162

Id.

163

See generally Shriver, supra note 157. See also REENTRY MYTHBUSTER! ON FEDERAL
HIRING POLICIES, supra note 16 (“Consistent with Merit System Principles, [federal] agencies
[and departments] are required to consider people with criminal records when filling positions if
they are the best candidates and can comply with requirements.”).
164

See generally EEOC Informal Discussion Letter (March 19, 2007),
http://www.eeoc.gov/eeoc/foia/letters/2007/arrest_and_conviction_records.html#N1 (discussing
the EEOC’s concerns with changes to OPM’s suitability regulations at 5 CFR part 731).
165

See Stephen Saltzburg, Transcript of 7-26-11 Meeting, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/transcript.cfm#saltzburg (last visited
April 23, 2012) (discussing the findings from the American Bar Association’s (ABA) Collateral
Consequences of Conviction Project, which found that in 17 states that it has examined to date,
84% of the collateral sanctions against ex-offenders relate to employment). For more
information about the ABA’s project, visit: Janet Levine, ABA Criminal Justice Section
Collateral Consequences Project, INST. FOR SURVEY RESEARCH, TEMPLE UNIV.,
http://isrweb.isr.temple.edu/projects/accproject/ (last visited April 20, 2012). In April 2011,
Attorney General Holder sent a letter to every state Attorney General, with a copy to every
Governor, asking them to “evaluate the collateral consequences” of criminal convictions in their
state, such as employment-related restrictions on ex-offenders, and “to determine whether those
[consequences] that impose burdens on individuals . . . without increasing public safety should
be eliminated.” Letter from Eric H. Holder, Jr., Att’y Gen., Dep’t of Justice, to state Attorney
Generals and Governors (April 18, 2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1088/Reentry_Council_AG_Lett
er.pdf.
Most states regulate occupations that involve responsibility for vulnerable citizens such
as the elderly and children. See STATE CRIMINAL HISTORY, supra note 37, at 10 (“Fifty states and
the District of Columbia reported that criminal history background checks are legally required”
for several occupations such as nurses/elder caregivers, daycare providers, caregivers in
residential facilities, school teachers, and nonteaching school employees). For example,
Hawaii’s Department of Human Services may deny applicants licensing privileges to operate a
childcare facility if: (1) the applicant or any prospective employee has been convicted of a crime
other than a minor traffic violation or has been confirmed to have abused or neglected a child or
threatened harm; and (2) the department finds that the criminal history or child abuse record of

51

the applicant or prospective employee may pose a risk to the health, safety, or well-being of
children. See HAW. REV. STAT. § 346-154(e)(1)–(2).
166

42 U.S.C. § 2000e-7.

167

See Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 210 (1991) (noting that “[i]f
state tort law furthers discrimination in the workplace and prevents employers from hiring
women who are capable of manufacturing the product as efficiently as men, then it will impede
the accomplishment of Congress’ goals in enacting Title VII”); Gulino v. N.Y. State Educ.
Dep’t, 460 F.3d 361, 380 (2d Cir. 2006) (affirming the district court’s conclusion that “the
mandates of state law are no defense to Title VII liability”).

52