Employers across a number of industries are required by state or local laws to exclude from their workforce employees with certain criminal backgrounds. For example, Ohio state law prohibits school districts from employing teachers who have been convicted of specific crimes regardless of when the conviction occurred. The specific crimes include growing or dealing marijuana and convictions for domestic violence.
Ohio’s law, like so many similar state and local laws across the country, is seemingly at odds with the Equal Employment Opportunity Commission’s (EEOC) stance on the use of criminal records. In 2012, the EEOC issued guidance for employers on using arrest and conviction records in making employment decisions. The EEOC took the position that compliance with a state or local law alone does not shield an employer from Title VII liability. Per the EEOC:
[I]f 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.
From the EEOC’s perspective, excluding applicants and employees from employment based on their criminal histories tends to unfairly impact minorities because, historically, minorities have been arrested and convicted at rates disproportionate to their representation in the general population. The EEOC therefore assumes that an employer’s use of criminal history in making an employment decision has a per se disparate impact on minorities and puts the onus on employers to justify criminal records-based exclusions. Employers prohibited from hiring or retaining employees with certain criminal histories are increasingly finding themselves targets of EEOC investigations and having to expend resources to justify state or local law-mandated criminal record exclusions. What can employers do?
To address this conflict, Congress recently proposed legislation to protect employers who comply with the laws that regulate their industries. The proposed legislation, aptly named the “Certainty in Enforcement Act of 2014,” would amend Title VII of the Civil Rights Act of 1964, by adding the following language:
(o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer, labor organization, or employment agency, or for a joint labor management committee controlling apprenticeships or other training or retraining opportunities, to engage in an employment practice that is required by Federal, State, or local law, in an area such as, but not limited to, health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties.
As the Republican Party is set to control both Houses of Congress, this legislation is expected to get significant attention in 2015. Some Republican Congressional leaders have openly expressed their desire to curb the perceived overly zealous enforcement against employers by the EEOC, the National Labor Relations Board and other federal labor agencies. For now, however, the proposed legislation has been sent to committee for further discussion and potential revision. We will keep you apprised of any progress or further developments.