EEOC Takes Positions on the Use of Criminal Records and on Transgender Discrimination
By Brad Adler and La'Vonda McLean

The EEOC is, once again, taking an employee-friendly position on trending legal issues. In its most recent Enforcement Guidance, the EEOC reaffirmed its position that employers should be cautious in using arrest and conviction records in making employment decisions. The EEOC also issued a ruling for the first time that transgender discrimination is a form of sex discrimination protected under Title VII.  

Employer Use of Arrest and Conviction Records

Employers have, in the past, utilized criminal history information in an effort to combat theft and fraud, to reduce concern about workplace violence, and to mitigate potential liability for negligent hiring. On April 25, 2012, however, the EEOC issued an Enforcement Guidance updating its prior position that using such records as an absolute bar for hiring a potential candidate (or making any other employment decision) could limit the employment opportunities of some protected groups and, thus, violate Title VII. 

The EEOC’s new guidance builds on court decisions and existing EEOC policy on an employer’s use of arrest and conviction records in employment decisions.  According to the EEOC, an employer’s use of criminal history information may violate Title VII:

  1. If the employer treats job applicants or employees with the same criminal records differently based on their race, color, religion, sex, or national origin (disparate treatment liability); or
  2. When an employer’s criminal history policy disproportionately excludes certain job applicants or employees protected under Title VII, unless the policy is job related and consistent with business necessity (disparate impact liability).

In meeting the “job related and consistent with business necessity” test, the EEOC initially makes clear its belief that an arrest (alone) should never be used because an arrest does not establish that the person committed the offense. Further, the EEOC emphasizes that an arrest or conviction record should only be considered in making an employment decision if the employer has considered: (1) the nature of the job; (2) the nature and seriousness of the offense; and (3) the length of time since it occurred. 

The EEOC then strongly encourages (although does not require) employers to go through an “individualized assessment” to those applicants screened out by this process to determine if the criminal record truly should have an impact on the individual’s employment opportunity.

Given the EEOC’s increased interest in this issue, we advise employers to take two proactive steps in response to this latest guidance. First, employers should review their policies and procedures for screening applicants and employees for criminal conduct. If they have any policies and procedures in place that treat arrest or conviction records as an absolute bar to employment, we recommend they are revised to make clear that one’s criminal history is not an absolute bar, but simply is one factor that will be considered. 

Second, employers should remind those managers making hiring decisions of the policy on considering one’s criminal history. If a manager is going to rely upon an individual’s criminal history to make an employment decision, the employer should, at least, ensure that the decision takes into account the EEOC’s three factors discussed above.    

EEOC Rules That Transgender Discrimination is Sex Discrimination

The EEOC also determined on April 20, 2012 that discrimination based on gender identity, change of sex, or transgender status constitutes sex discrimination in violation of Title VII. In the case of Macy v. Holder, the EEOC found that claims of discrimination based on transgender status are a form of sex discrimination claims under Title VII and that the EEOC has jurisdiction over such a claim. The EEOC explained that it is not creating a new cause of action, but rather clarifying that charges of sex discrimination include gender stereotyping.

While the First, Sixth, Ninth, and Eleventh Circuits have issued similar holdings explaining that discrimination against transgender individuals because of gender non-conformity is sex discrimination, the EEOC’s decision is seen as setting a national standard offering clear guidance on the issue. In response, employers should consider including transgender individuals in their anti-discrimination policies.      

For more information, contact Brad Adler at 770.818.1413 or [email protected] or La’Vonda McLean at 770.818.4247 or [email protected].



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