New EEOC Guidance Addresses Criminal Records Checks

The sexual abuse of minors by persons working for churches and other youthserving charities is a persistent and virulent threat. Our research reveals that the sexual abuse of minors has been the number one basis for church litigation in six of the past seven years.

Many secular charities—including public schools, Boy Scouts of America, Girl Scouts, Big Brothers Big Sisters, Boys and Girls Clubs of America, 4-H, youth soccer, and Little League—have responded to this risk by mandating criminal records checks for persons who will work with minors. Many churches are doing the same. Criminal records checks not only reduce the risk of child molestation, but they also reduce the risk of institutional liability based on negligent selection. They also are relatively inexpensive and easily accessible.

Many leaders of churches and other youth-serving charities were stunned last April when the U.S. Equal Employment Opportunity Commission (EEOC) suggested that the use of criminal records checks may violate Title VII of the Civil Rights Act of 1964, which generally prohibits discrimination in employment on the basis of race, color, national origin, gender, or religion, by employers with at least 15 employees that are engaged in interstate commerce. Do churches and other youth-serving charities, in their efforts to protect children by requiring criminal records checks for youth workers, thereby expose themselves to liability for violating Title VII? It’s a classic dilemma—an attempt to avoid one form of liability results in potential liability for another.

Should churches and other youth-serving charities continue to use criminal records checks? Are they exposing themselves to a risk of litigation and liability for doing so?

A question of civil rights

The Civil Rights Act of 1964 was enacted by Congress “to achieve a peaceful and voluntary settlement of the persistent problem of racial and religious discrimination.” Title VII, Section 703(a), of the Act specifies:

(a) It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

This general ban on discrimination applies to all employers, including religious organizations, that have 15 or more employees and that are engaged in an industry or activity “affecting commerce.”

“In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, 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.” EEOC guidance

Note that Title VII only addresses discrimination committed by employers against employees or applicants for employment on the basis of any one or more of the following five grounds:

• race
• color
• religion
• sex
• national origin

Persons with a criminal record are not a protected class, so how can criminal records checks violate Title VII? The recent EEOC guidance suggests that violations of the ban on race and national origin discrimination in employment decisions can occur in two ways:

• disparate treatment, or
• disparate impact

disparate treatment

A covered employer is liable for violating Title VII when a plaintiff demonstrates that it treated him or her differently because of race, national origin, or another protected basis. For example, there may be a disparate treatment Title VII violation if 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.

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:

• Comments by the employer or decision maker that are derogatory with respect to a person’s protected group, or that express group-related stereotypes about criminality.
• 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.
• The fact that some persons are treated differently than individuals who are not in a 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.
• Statistical analysis derived from an examination of the employer’s applicant data, workforce data, 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

The definition of disparate impact discrimination was added to Title VII in 1991:

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.

With respect to criminal records, the EEOC guidance states that “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,” (emphasis added).

The EEOC guidance addressed disparate impact in the use of criminal records checks as follows:

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, even though African Americans only comprised approximately 14% of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. 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.

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.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged. This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). Based on a state-bystate examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites, and 7 states had a Black-to-White ratio of incarceration that was 10 to 1.73 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.

In the last twenty years, there has been a significant increase in the number of Americans with criminal records in the working-age population. The EEOC guidance notes:

– In 1991, only 1.8% of the adult population had served time in prison. After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults). 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. 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.

– Arrest and incarceration rates are particularly high for African American and Hispanic men. 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. EEOC guidance

The EEOC guidance concludes that this evidence supports a finding that criminal record exclusions have a disparate impact based on race and national origin.

After a plaintiff establishes disparate impact, Title VII shifts the burden of proof to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”

In 2007, a federal appeals court addressed an employer’s alleged violation of Title VII for using criminal records checks. El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007). A job applicant challenged an employer’s policy of excluding from employment as a bus driver anyone who had ever been convicted of a violent crime. A 55-year-old African American driver-trainee was terminated from employment when his employer 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 crime under the employer’s policy. A federal appeals court expressed “reservations” about a policy excluding from employment all violent crimes, no matter how long ago they were committed.

The court noted that some level of risk is inevitable in all hiring, and that, “in a broad sense, hiring policies … ultimately concern the management of risk.” Recognizing that assessing such risk is at the heart of criminal record exclusions, the court 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.”

The court affirmed the trial court’s dismissal of the case against the employer, but stated that the outcome of the case might have been different if the plaintiff had “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.” The court reasoned, however, that the recidivism evidence presented by the employer’s experts, in conjunction with the nature of the position at issue (a driver-trainee with unsupervised access to vulnerable adults) required the employer to exercise the utmost care.

Another federal appeals court ruled 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.” Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1293 (8th Cir. 1975). The court 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;
• the time that has passed since the offense or conduct and completion of the sentence; and,
• the nature of the job held or sought.

The new EEOC guidance discusses each of these factors as follows:

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. 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. 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 ….” 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.

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 “bears a demonstrable relationship to successful performance of the jobs for which it was used.”

Two defenses

The EEOC guidance notes that, for an employer to establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, it 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.” And, “two circumstances in which the EEOC believes employers will consistently meet the ‘job related and consistent with business necessity’ defense” are as follows:

• 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); 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 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.

The EEOC guidance adds:

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.

Arrests

The EEOC guidance cautions that “the fact of an arrest does not establish that criminal conduct has occurred,” and that “arrests are not proof of criminal conduct.” Many arrests do not result in criminal charges, or the charges are dismissed. Even if an individual is charged and subsequently prosecuted, he or she is presumed innocent unless proven guilty. The EEOC guidance adds:

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.

• Key point. The EEOC guidance notes that “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) …. [The Department of Justice has] reported that many arrest records in the FBI’s database and state criminal record repositories are not associated with final dispositions. Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.

The EEOC guidance notes that “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,” (emphasis added).

The EEOC guidance includes the following relevant example for churches:

• Example. 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 EEOC finds no reasonable cause to believe Title VII was violated.

Convictions

The EEOC guidance affirms that “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.” However, it cautions that this is not invariably the case, since “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.”

Some states require employers to wait until late in the selection process to ask about convictions. The 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. To illustrate:

• A Hawaii statute specifies that employers may withdraw an offer of employment if the prospective employee has a conviction record “that bears a rational relationship to the duties and responsibilities of the position.” Hawaii Rev. Stat. § 378-2.5(b).
• A Connecticut statute provides that “no employer … shall inquire about a prospective employee’s past convictions until such prospective employee has been deemed otherwise qualified for the position.” Conn. Gen. Stat. § 46a-80(b).
• A Minnesota statute specifies that “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.” Minn. Stat. § 364.021(a).

Church leaders should be familiar with any comparable provision under state law when considering the rejection of an applicant for employment based on a criminal conviction.

• Key point. The EEOC guidance states that as a “best practice,” and as an EEOC recommendation, “employers not ask about 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.”

Examples

The EEOC guidance contains the following two examples. Note the following:

• each example has been modified to reflect a church employer
• it is assumed in each example that the church is a covered employer under Title VII since it has at least 15 employees and is engaged in commerce
• the “ministerial exception” (addressed below) is not considered

• Example. A church 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 church 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 as 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 church’s jobs.

• Example. Leo, an African American man, has worked successfully at a church for three years. After a pastoral change, a policy is adopted under which the church does not employ anyone with a conviction. The policy does not allow for any individualized assessment before exclusion. The new pastor and the church’s leadership pride themselves on employing only the “best of the best” for every position.

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 the church, 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 pastor learned about Leo’s conviction record through a background check, his employment was terminated. The church refuses to reconsider its decision despite Leo’s positive employment history at the church.

Leo files a Title VII charge alleging that the church’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 the church’s defense that it employs only the “best of the best” for every position, and that this necessitates excluding everyone with a conviction. The church 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 the church 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 church’s policy is not job related for the position in question and consistent with business necessity.

The EEOC guidance cites the following reasons that criminal records databases may be inaccurate:

• A 2011 study by the U.S. Department of Justice reported that, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests.
• A 2006 study by the Department of Justice found that only 50 percent of arrest records in the FBI’s database were associated with a final disposition.
• 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 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.
• 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.”

Employer “Best Practices”

The EEOC guidance provides the following examples of best practices for employers that 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 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.
  • 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.
    – Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
    – 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 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.

Application to church leaders

The EEOC guidance contains important information for church leaders on the use of criminal records checks in screening employees and volunteers. It also raises a number of related issues that merit consideration. Here is a review of the key points.

1. increasing use of criminal records checks

A growing number of churches perform background checks on volunteer workers and employees. The EEOC guidance refers to a recent study in which 92 percent of responding employers (both nonprofit and for-profit) stated that they subjected all or some of their job candidates to criminal background checks. Why do employers perform these checks? According to the study, employers’ use of criminal history information is based largely on a desire to avoid liability for negligent hiring. Here are some additional findings of the study of responding employers:

• 73 percent reported that they conducted criminal background checks on all of their job candidates
• 19 percent reported that they conducted criminal background checks on selected job candidates
• 7 percent reported that they did not conduct criminal background checks on any of their candidates
• 55 percent reported that they conducted criminal background checks “to reduce legal liability for negligent hiring.” The study states that “negligent 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.”

• Example. A church uses several volunteers in its children’s and youth programs. It does not perform background checks or criminal records checks because church leaders do not believe that the molestation of children is a risk that would ever arise in their church. The church selects Don as a children’s worker. Don is allowed to take a 7-year-old child home from church, and diverts to his apartment, where he molests the victim. The victim’s parents later sue the church, claiming that it is legally responsible on the basis of negligent selection for Don’s acts. This is a viable claim that exposes the church to substantial liability.

• Example. A church uses several volunteers in its children’s and youth programs. Every volunteer is required to pass a thorough background check that includes an application, references, and a criminal records check. A church selects Ron as a volunteer after obtaining several positive references and a clean criminal records check. Ron molests a child in a church restroom. The victim’s parents sue the church, claiming that it is legally responsible on the basis of negligent selection for Ron’s acts. The church’s screening process, including references and a criminal records check, are a viable defense that may defeat the family’s charge of negligent selection. This example illustrates why a growing number of churches are using criminal records checks as part of their screening procedures for volunteer workers.

2. criminal records check not enough

As important as criminal records checks are in a comprehensive screening process, they should never be viewed as the only screening procedure to be used. To illustrate, a church agency in Florida was found liable earlier this year for a pastor’s molestation of a child in a church that he established. The agency had assisted in training and financing the pastor, and had conducted a criminal records check. Unfortunately, the church did not call or obtain references from the two prior churches in which the pastor had been employed. The pastor had molested at least one child in each of these churches. The victim’s parents argued that if the agency had contacted these other churches for a reference, they would have been advised of the pastor’s prior acts of molestation (which were known to leaders in both churches). The court agreed, and found the agency liable on the basis of negligence for the pastor’s acts.

This case is important because it demonstrates that criminal records checks should never be viewed as the only screening procedure to be utilized in assessing the fitness of persons for volunteer and compensated positions in a church.

3. what about uncompensated volunteers?

The vast majority of persons who work with minors in churches and other youthserving charities are volunteers, not employees. Does Title VII, and the EEOC guidance, apply to them?

Title VII states that:

It shall be an unlawful employment practice for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

It is important to note that Title VII only protects employees from discriminatory treatment. Title VII defines an “employee” as “an individual employed by an employer.” The courts generally have ruled that the essence of an employment relationship is the payment of compensation for services. To illustrate, one court, in concluding volunteer firefighters were not “employees” under Title VII, observed:

Ultimately, it appears that whether an employer-employee relationship exists depends on the extent to which compensation is exchanged for services—i.e., the “employee” derives a financial benefit from the “employer,” and the “employer” exercises “control [over] the ‘means and manner’ of the worker’s performance.'” Although the Court recognizes that compensation could encompass more than merely wages or a salary, the financial “benefits” provided here simply are not significant enough to rise to the level of compensation …. The chief financial benefits are the tax credit and the pension benefit available through the Oklahoma State Firefighters Association. The tax credit, however, is not available to all volunteer firefighters, but only to those who have achieved certain certifications and completed a specified amount of continuing education. The largest tax credit a firefighter may claim is $400 per year. To receive any pension benefit, a firefighter must volunteer a minimum of ten years. Here, there is no evidence on either point. When compared to the type of remuneration ordinarily derived from an employment relationship, the benefits received by the City’s volunteer firefighters are simply too minor to rise to a level that can be characterized as compensation. Scott v. City of Minco, 393 F.Supp.2d 1180 (W.D. Okla. 2005).

Also, a federal appeals court concluded that remuneration is an “essential condition” of employment, and a volunteer, who did not receive compensation, was not an “employee” under Title VII. O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997).

Numerous courts have held that volunteers are not employees for purposes of employment discrimination. Some courts have reached the opposite conclusion, but always on the basis of some benefit or remuneration that is provided by the employer.

• Example. A church uses 40 adult volunteers in its children’s and youth programs. The volunteers receive no compensation or economic benefits of any kind from the church. As part of its selection process, the church conducts background checks on all volunteer children’s and youth workers. The background check includes a criminal records check. The church adopted a policy several years ago of total exclusion from volunteer positions in children’s and youth programs for any applicant with a criminal conviction of any kind. The church’s policy of total exclusion does not violate Title VII to the extent that it applies to prospective uncompensated volunteers rather than employees.

• Example. Same facts as the previous example except that the church pays children’s and youth workers the minimum wage for hours worked. According to most courts, the payment of compensation would make these workers employees, and as such they would be protected by Title VII’s ban on discriminatory practices. The church’s policy of total exclusion of any person with a criminal record, without any individualized assessment, may constitute a violation of Title VII due to “disparate impact” on racial minorities.

4. implement best practices

The EEOC guidance provides employers with a series of helpful “best practices” (quoted above). Churches that conduct criminal records checks should be familiar with these practices, and take steps to implement them with regard to employees.

5. an employer defense

The EEOC guidance notes that employers may be guilty of unlawful discrimination under Title VII both by overt discrimination and “disparate impact” discrimination (i.e., a practice, such as criminal records checks, that adversely impacts minorities). With respect to criminal records, the EEOC guidance states that “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.”

In order for an employer to establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, it 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.” One way for an employer to do this is to “develop 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 provide 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 EEOC guidance states that 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. 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;
  • 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 or 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.
• 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.

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.

The EEOC guidance provides the following examples to illustrate best practices, including individual assessment.

• Example. 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 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 fulltime 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.

• Example. 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.

6. the application of Title VII to churches

The recent EEOC guidance on the use of criminal records checks only addresses employers that are subject to Title VII of the Civil Rights Act of 1964. Title VII generally prohibits discrimination in employment on the basis of race, color, national origin, gender, or religion, by employers with at least fifteen employees that are engaged in interstate commerce. Most churches have fewer than 15 employees, and so they are not subject to Title VII. However, most states have enacted their own employment discrimination laws which are more likely to apply to churches since they have no interstate commerce requirement and generally apply to employers with fewer than 15 employees. To the extent that a church is subject to a state employment discrimination law comparable to Title VII, the recent EEOC guidance will be relevant.

7. the “ministerial exception”

Earlier this year the United States Supreme Court unanimously affirmed the so-called “ministerial exception” which generally bars the civil courts from resolving employment disputes between churches and clergy. Numerous courts have ruled that the ministerial exception prohibits the civil courts from resolving Title VII discrimination claims by clergy against their employing church. It is therefore unlikely that the civil courts would resolve claims by ministers that their employing church violated Title VII by a criminal records check policy that violates the EEOC guidance addressed in this article.

Need More Information? See Richard Hammar’s Pastor, Church & Law for a complete explanation of the application of Title VII to churches.