what the eeoc now says about criminal convictions€¦ · the equal employment opportunities...

RMS N 1 EWSLETTER ALL RIGHTS RESERVED © 2012 PAGE

This publication is not intended to be and should not be used as a substitute for

specific legal or risk management advice. Readers should obtain specific legal or risk management advice in addressing issues discussed in this newsletter.

NEWSLETTER Volume Eight - Number Five May 2012

What the EEOC Now Says About Criminal Convictions

For many years, the healthcare industry relied on guidance documents issued by the Equal Employment Opportunities Commission when evaluating criminal background information. The process was fairly straightforward, recognizing criteria articulated in a U.S. Circuit Court of Appeals ruling.1 Beyond the guidance information from the EEOC, many states have enacted laws that address criminal background in the hiring and employment process.2 Given that many healthcare entities provide care to vulnerable adults and children, many state laws created “carve outs” that prohibited individuals with certain criminal convictions from working in such settings. Although seen as harsh by some observers, the ability of healthcare facilities to safeguard patients and staff provided sufficient public policy justification for barring certain convicted individuals from working with vulnerable populations. The Centers for Medicare and Medicaid Services (CMS), working along a different track, launched an initiative that incentivized states to complete background checks with a particular focus on those who wanted to work in nursing facilities.3 The goal of this program is to identify those who should not work with vulnerable populations. How can it be that two federal entities have created a potential for conflict? The EEOC approach is to offer guidance regarding the enforcement of Title VII of the 1964 Civil Rights Act. The CMS program seems to encourage states to operate a program that could clash with the EEOC guidance. Further, many states have established their own approach when to ask a job applicant about criminal background. The Massachusetts “CORI” program reflects this state level approach.4

POWERED BY ONEBEACON PROFESSIONAL INSURANCE




In the middle of this federal and state activity are hospitals, nursing facilities, and other healthcare organizations providing care and treatment to vulnerable adults and children. The lack of clarity emanating from the federal and state levels does little to help shape a safe environment of care in terms of hiring individuals who do not pose a risk of harm to vulnerable individuals. Putting the issue in context, the EEOC guidance applies to hiring practices. But what about independent contractors, such as members of the medical staff who hold clinical privileges? In the long term, will healthcare organizations apply the EEOC guidance to independent healthcare providers, let alone employed members of the medical staff? No doubt there is a potential for serious risk exposure in complying with the EEOC guidance. However, by understanding the basis for the new guidance and how it can be put into operation in a healthcare organization, much can be done to manage the enforcement implications of the EEOC information. The Rationale for the EEOC Change. Reviewing statistics over the last twenty years, the EEOC noted what it termed a “significant increase” in the number of Americans who had encounters with the criminal justice system,5 especially those in the working-age population.6 The data trends were alarming for the EEOC. Noting 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.”7

The EEOC was particularly concerned about the racial disparity reflected in the data. As the EEOC pointed out:

“African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.”8

The EEOC went further, pointing out a number of studies revealed that in many instances, both federal and state criminal databases included incomplete or





inaccurate criminal information. Although many employers may use these government resources, some utilize the Internet or third-party screening businesses to complete a background check.9 As the EEOC point out:

“Businesses that sell criminal history information to employers are ‘consumer reporting agencies’ (CRAs) if they provide the information in ‘consumer reports’ 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. However, they may report convictions indefinitely.”10

Reliance on CRAs was seen as an issue by the EEOC due to the variability in the areas covered and information collected. That these entities may lack disposition information, including updated convictions, orders to seal or expunge records or orders to participate in a diversion program, could also impact the reliability of criminal conviction records.11

Given the racial disparity for African American and Hispanic men in terms of incarceration, the EEOC expressed a concern about criminal records in the employment screening process. To this end, the EEOC reiterated in the most recent guidance a determination to enforce Title VII that prohibits employment discrimination based on race, color, religion, sex, or national origin.

With regard to a “covered employer”12 allegedly unlawfully discriminating by denying employment based on a criminal record, the EEOC uses a two-part analysis. The EEOC looks at “disparate treatment” and “disparate impact.” The former refers to a situation in which a plaintiff shows that he or she was treated differently by a covered employer based on race, national origin or another protected basis.13

Disparate impact involves a situation in which a plaintiff shows that a covered 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.”14

In the case of disparate impact liability, if an employment practice works to exclude a protected class member, and it cannot be demonstrated to be job





performance-related it is a prohibited practice.15 As part of such an analysis, the complaining party must demonstrate 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.”16

The risk of “disparate impact” liability can be found with the use of criminal records when it is shown 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.”17

The charts below highlight the types of evidence used to establish disparate treatment and disparate impact discrimination.18

Disparate Treatments Disparate Impacts

Biased statements Applicant flow information retained in accordance with the Uniform Guidelines on Employee Selection Procedures.

Inconsistencies in the hiring process Workforce data

Similarly situated comparators (person who are similar to the plaintiff in relevant respects except for membership in a protected group)

Criminal history background check data

Employment testing Demographic data

Statistical data (employer gives greater weight to criminal history information for members of a protected group)

Incarceration/conviction data

Probative value of employer’s application data





The revised guidance from the EEOC emphasizes that an arrest is not proof of criminal conduct. In the employment context, knowing that an arrest has occurred may

“trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. Title VII calls for a fact-based 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.”19

It is the conduct of the individual and not the arrest that is pertinent for purposes of employment under the updated EEOC guidance. Knowing when and how to inquire about a criminal conviction is a central approach found in the revised EEOC guidance.

What the EEOC Guidance Means in Practice. There is likely to be some confusion about how and when an employer may inquire about a criminal record in the aftermath of the EEOC revised guidance on the topic. To help employers understand what is expected of them, the EEOC has provided detailed information in both the updated EEOC guidance document20 and an FAQ.21 The EEOC guidance suggests that employers may establish that the disparate impact is both job related and also consistent with a business necessity under Title VII. To do so, employers must show that employer policy “link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”22 [emphasis added] How can this linkage be established? One way is through a process of validation. That is,

“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).”23

The Uniform Guidelines provide ways to validate employment screens that are described in the Code of Federal Regulations or CFR.24 However, even the EEOC acknowledged that





“Although there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for validating some employment exclusions, such studies are rare at the time of this drafting.”25

The other process uses a “targeted screening method” that takes into consideration (a), the nature of the crime, (2) the amount of time that has elapsed since the crime; and (c) the nature of the job. These three so-called “Green factors” refer to a test recognized in the 1975 U.S. Circuit Court of Appeal decision described earlier.26 “Targeted screening” or “targeted exclusions” must be 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.”27

Moreover, an employer may be able to justify utilizing the target screening approach based on the three Green factors. Although individualized assessments are not required in each case, it may reduce the risk of Title VII liability for an employer by permitting the employer to take into consideration a robust amount of information in view of an employment policy that is job related and consistent with a business necessity.28

Both the validation and three-part Green factors also serve as defenses in claims involving allegations of Title VII disparate impact in criminal conduct exclusion in employment. Of the two approaches, the targeted screening seems to offer the most practical approach, especially with the individualized assessment.

How is it supposed to operate? Usually, the employer will inform the individual that due to his or her prior criminal conduct, he may be excluded from employment. The individual would then be afforded the opportunity to demonstrate that the employment exclusion should not apply to him or her. The individual would furnish additional information for this purpose. The employer, in turn, then must decide whether this additional information demonstrates that the employment policy as applied to the individual, is not job related or consistent with a business necessity. Further, if the individual elects not to respond to efforts by the employer to obtain additional information about his or her background, the employment decision may be made without it.29





The individual may submit information that shows that he or she was incorrectly identified in the criminal record. Similarly, the individual may supply information showing that the record is inaccurate in other respects. Other pertinent information that may be supplied includes:

• 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; • 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;

• Rehabilitation efforts, e.g., education/training; • Employment or character references and any other information regarding

fitness for the particular position; and • Whether the individual is bonded under a federal, state, or local

bonding program.30 As part of the updated guidance, EEOC issues a bullet list of what it termed “Employer Best Practices.” Along with the insights on targeted screening and individual assessments, it provides a framework for managing many of the aspects of criminal conviction records in the employment process. The Best Practices are as follows:

“General • Eliminate policies or practices that exclude people from employment

based on any criminal record. • Train managers, hiring officials, and decision makers about Title VII

and its prohibition on employment discrimination. Developing a Policy • Develop a narrowly tailored written policy and procedure for screening

applicants and employees for criminal conduct. o Identify essential job requirements and the actual circumstances

under which the jobs are performed. o Determine the specific offenses that may demonstrate unfitness

for performing such jobs. o Identify the criminal offenses based on all available evidence. o Determine the duration of exclusions for criminal conduct based





on all available evidence. o Include an individualized assessment. o Record the justification for the policy and procedures. o Note and keep a record of consultations and research

considered in crafting the policy and procedures. • Train managers, hiring officials, and decision makers on how to

implement the policy and procedures consistent with Title VII. Questions about Criminal Records • When asking questions about criminal records, limit inquiries to records

for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.”31

Resolving Potential Conflicts with the CMS Background Initiative and State Law. Perhaps the most challenging aspect of the updated EEOC guidance involves potential conflicts with state law and the CMS National Background Check Program.32 Which set of laws takes precedent? EEOC recognizes that many states and local jurisdictions have enacted laws or regulations that serve to block some individuals with certain types of criminal conviction records from obtaining employment. On this point the update guidance makes clear that:

“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. 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.”33

The guidance suggests that Title VII will trump state law. But it leaves some wiggle room, recognizing that an employer’s decision to exclude a person from employment will be acceptable under Title VII if it is job related and consistent





with business necessity – and not just to satisfy state law requirements.34

And what about the National Background Check Program (NBCP)? Mandated by the Accountable Care Act or ACA,35 the national background check program is conducted through CMS. Voluntary for now, the National Background Check Program applies to the states, the District of Columbia, and Commonwealth of Puerto Rico. The Program looks to participating states to:

“…Require FBI fingerprint checks as part of the criminal background check for all direct patient access employees; and

Develop and test a rap-back system by which State law enforcement departments immediately inform the State of any criminal convictions against the employee that occur following the pre-employment background check.”36 [Emphasis added]

For purposes of this law, the term “direct patient access employee” means

“any individual who has access to a patient or resident of a long term care facility or provider through employment or through a contract with such facility or provider and has duties that involve (or may involve) one-on-one contact with a patient or resident of the facility or provider, as determined by the State for purposes of the nationwide program.”37 [Emphasis added]

The EEOC Guidance document makes clear that where there is a conflict with other federal laws or regulation such a conflict serves as a defense to allegations of discrimination under Title VII. While this may be of some solace to those trying to fathom how to implement the EEOC Guidance, and, at the same time, participate in the National Background Check Program (NBCP), it still means that there is a potential for a claim that must be defended by the employer.

Observations on the EEOC Guidance Document and the CMS Background Check Program. So what are some key observations for healthcare facilities trying to deal with this mélange of federal and state laws, regulations, and the EEOC guidance document? First, under the EEOC updated guidance, a Title VII 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).”38

Second, “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).”39

Third, “compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.”40

Fourth, as noted, “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.”41 Fifth, it is important to remember that the EEOC updated guidance document is not a regulation or piece of legislation. Instead, it is a guidance tool. Students of administrative law recognize that guidance tools are not enforceable as laws or regulations. The content may be influential and reflect the way in which an agency or government body such as the EEOC intends to enforce Title VII. However, it is not a substitute for Title VII, case law on Title VII and regulations promulgated in accordance with federal law. Sixth, the CMS background check program raises another layer of risk concern as it relates to reliance on screening for contracted employees with direct access to a class of patient or resident that is the focal point of the law. A maintenance worker who is also part of a long term care facility’s resident safety team may have “direct access” to vulnerable, frail elderly individuals as part of a fall rescue effort. If the worker was not screened appropriately in accordance with the CMS program and “slips through the cracks” as a contracted employee, there could be serious risk exposure. Such might be the case with a worker for whom fingerprints were not submitted and checked by the supplying personnel agency or who falsified other relevant data. Not only would residents be vulnerable, but also the healthcare facility. It would not be difficult for a convicted felon to slip through, especially one with a conviction record of serious bodily injury to vulnerable adults or adolescents. There is much to absorb in this mélange of federal and state laws, regulations, and guidance documents. Input from experts in human resources, labor law, compliance and risk management will prove essential in this regard.





Risk Management Strategies for Operationalizing the Updated EEOC Guidance on Criminal Convictions. There are a number of risk management strategies to consider when implementing the revised EEOC guidance on criminal conviction records in the employment process. Such strategies extend to agencies furnishing contracted personnel so that the measures taken under the CMS National Background Check Program align with the recent EEOC guidance. An additional consideration should be state law requirements, which may help build the case or defense under job related and business necessity criteria for purposes of the EEOC guidance on Title VII discrimination issues. Strategies for this purpose include the following:

1. Evaluate and Improve on Current Hiring Practices. Complete a thorough review of existing hiring practices and employment policies to make certain that the measures in place are consistent with the updated EEOC guidance. Recognize that for those entities under the CMS National Background Check Program in a participating state, review and upgrade existing employment policies with respect to FBI finger-printing and the “rap-back” pre-employment criminal conviction screening process.

2. Evaluate and Improve Terms and Conditions in Personnel Agency Contracts. Look closely at current personnel agency contracts to see if parameters for criminal conviction and background check are consistent with the EEOC Guidance, and where, applicable, the CMS National Background Check Program. Use the contract to set expectations for appropriate screening by the personnel agency and also insist upon appropriate hold harmless, indemnification, and insurance provisions.

3. Set a Clear Expectation for Prospective Employees. Examine closely employment opportunity messages utilized by the

healthcare organization to make certain that the content comports with the EEOC Enforcement Guidance. Consider for this purpose electronic media, such as websites, social media venues, and signage as well as printed brochures or ads and both television and radio advertisements.





4. Revise Job Applications to Align with Revamped Employment Policies. Complete a thorough review of current job applications to make certain that any questions regarding criminal conviction records are consistent with the revised EEOC guidance and updated employment policies of the healthcare organization.

5. Provide Staff with the Correct Employment Policy Communication

Tools. Share good communication skills and scripts with human resources personnel and others involved in the implementation and enforcement of revised employment policy. Make such information practical regarding what questions to ask, when to pose such inquiries and how to respond to answers about criminal conviction. Consider role-playing exercises to make certain that those responsible for implementing employment policy do so in a consistent and acceptable manner.

6. Go Beyond the Best Practices Suggested by the EEOC Updated Guidance. Work with legal counsel, human resources and compliance leadership to design a workable framework that takes into account the updated EEOC Guidance, while at the same time, recognizes pertinent state law. Take a similar approach with respect to the CMS National Background Check Program for covered facilities in those states now participating in the CMS initiative. Use good risk management approaches that examine carefully relevant insurance coverages for employment practices, liability, fiduciary and director and officer exposures. Identify a “go to” person who is available to answer specific criminal conviction record questions under the employment policy. Take a long term strategic view that encompasses how the EEOC revised guidance will apply to employed physicians and other clinical professionals who obtain medical staff appointments as employees of the healthcare facility.

Conclusion. Central to the EEOC effort is the concept of fairness in the employment process. In the 21st century it is about time that systems and processes be put in place to do away with unfair and unreasonable disparate practices involving a protected class or unlawful racial discrimination. However, at the same time, effective measures need to be implemented to safeguard vulnerable patients and staff.





The updated EEOC guidance is a step in that direction. More needs to be done from a risk management and human resources perspective. Coordinated legislative and regulatory action at the federal and state level would provide further security for all concerned.

1In Green v. Missouri Pacific Railroad, 549 F.2d 1293 (8th Cir. 1975), the court established the three part test that examines the following issues: The nature and gravity of the offense or conduct; The time interval between the criminal offense and/or completion of the person’s sentence and today; and The job that the individual seeks to obtain or that is now held by the individual. Based on the Green case, the EEOC issued guidance in 1987, 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] and in 1990 [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] 2 See, e.g., MGL c.151B, s.4 (9-1/2) as added by St.2010, c.256, s.101. (Effective November, 4, 2010) [ the so-called “CORI” law in Massachusetts] and Washington Rev. Code §18.20.125 (2012). 3 See, Title VI, Subtitle B, Part III, Subtitle C, Section 6201 of the Affordable Care Act of 2010 [Public Law 111-148], that set the format for a national background check program to be implemented on a statewide basis for all prospective direct patient access employees and providers working in a skilled nursing facilities, nursing facilities, home health agencies, hospices, LTACs and intermediate care facilities for the intellectually disabled. 4 MGL c.151B, s.4 (9-1/2) as added by St.2010, c.256, s.101. (Effective November, 4, 2010). 5 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” No. 915.002, April 25, 2012, at p. 3, note 4. 6 Id, note 5. 7 Id. note 9. 8 Id. notes 11-14. 9 Id. at pages 5 note 41. 10 Id., page 5-6, notes 42-45. 11 Id at page 6, notes 46-48.

If you would like assistance with policy and procedure development in pre-

employment screening and compliance with relevant regulations, please contact us at (860) 242-1302.





12 The EEOC defines a “covered” employer as including private sector, and state and local government entities. An employer is covered under Title VII “if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as, or in the calendar year prior to when, the alleged discrimination occurred.” [ˆSee, EEOC Compliance Manual, DIRECTIVES TRANSMITTAL Number, 915.003 (August 2009), referencing 29 U.S.C. § 630(b)(2)]. 13 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra 5 at page 6, note 54. 14 Id. at page 8, note 59. 15 Id., at note 61. 16 Id. at page 9, note 63. 17 Id. at page 9. 18 The information for the chart summarizes information from the EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra 5. 19 Id at page 12. 20 Id. 21 Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, April 25, 2012, accessed at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm. 22 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra 5 at page 14. 23 Id., note 111. 24 Id at note 112, referencing 29 C.F R. §1607.5. 25 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra 5 at page 15, notes 113-114. 26 Green v. Missouri Pacific Railroad, supra note 1. 27 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra 5 at page 17. 28 Id. at 18. 29 Id. 30 Id., notes 122-126. 31 Id at pages 25-26. 32 Title VI, Subtitle B, Part III, Subtitle C, Section 6201 of the Affordable Care Act of 2010 [Public Law 111-148],supra note 3. 33 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra 5 at page 24, notes 166-167. 34 Id. at page 24 35 The Patient Protection and Affordable Care Act (P.L. 111-148, enacted on March 23, 2010) and the Health Care and Education Reconciliation Act of 2010 (P.L. 111-152, enacted on March 30, 2010) together called the Affordable Care Act (ACA). 36 “Questions and Answers about the National Background Check Program for Long Term Care Facilities and Providers,” The Centers for Medicare & Medicaid Services CFDA # 93.506, page 5, March 2012.





37 Id. 38 EEOC Enforcement Guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, supra note 5, at page 1. 39 Id. at page. 2. 40 Id. 41 Id.

what the eeoc now says about criminal convictions€¦ · the equal employment opportunities...

Documents