Employment-Application.pngThe National Football League’s handling of several recent high-profile domestic violence incidents involving players Ray Rice, Greg Hardy and Jonathan Dwyer has raised the national consciousness regarding how employers handle domestic violence issues. Domestic violence has been, and continues to be, a prevalent problem that creates many challenging issues for employers.  A recent Centers for Disease Control and Prevention study found that domestic violence victims lose a total of nearly 8.0 million days of paid work which is the equivalent of more than 32,000 full-time jobs as a result of the violence.  Employers have to consider issues including workplace security, whether discipline is appropriate for off-duty conduct, and handling accommodations for the victims of domestic violence.

Because of the many challenges that employers face, the natural inclination may be systematically to screen out all job applicants who have any criminal history of engaging in domestic violence, so that the agency can protect against the pernicious effects of domestic violence on the workplace.  However, employers should be extremely cautious in screening for particular types of criminal history, including when it involves domestic violence. Employers must comply with all applicable federal and state laws regarding the collection and consideration of criminal history records.

California “Ban the Box” Law

Since July 1, 2014, California state and local agencies are prohibited from making any inquiry about conviction history on the initial employment application.  This does not mean that the employer cannot inquire about convictions at all.  Rather, criminal background inquiries can only be made after the employer has established that the applicant meets the minimum qualifications of the position. This does not apply to those positions in which the agency is required by law to conduct a criminal history background check (e.g., peace officers) or to positions within a criminal justice agency.

Once minimum qualifications have been established, the employer can ask about criminal convictions. In California, with the exception of peace officers, the agency still cannot ask about arrests not resulting in convictions.

Title VII of the Civil Rights Act of 1964

Title VII prohibits employment discrimination based on race, color, national origin, and other protected classifications. The Equal Employment Opportunity Commission (EEOC) interprets and enforces Title VII. According to the latest EEOC Guidance on the use of criminal records information, blanket criminal record exclusions may have a disparate impact on African-American and Hispanic applicants. While a policy that automatically screens out applicants with a domestic violence criminal history does not on the face of it discriminate against any protected classification, employers must avoid creating a disparate impact on any protected group.  If an applicant can establish that the policy has a disparate impact, then the employer must show the policy is job related for the position in question 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, the employer needs to show that the risks inherent in the duties of a particular position are enhanced by the applicant’s previous criminal conduct.  In the case of a domestic violence conviction, the employer would need to show that this specific offense demonstrates unfitness for the job the applicant  seeks.  Consider, for example, whether a domestic violence conviction makes an applicant for a data entry position unfit to perform the duties of that job.  Ostensibly, an applicant with a domestic violence conviction could satisfactorily perform a data entry job as well as an applicant without such a conviction.  Thus, the criminal conduct does not necessarily demonstrate unfitness for the position and an automatic exclusion from this position based on the criminal conviction is not likely to be found sufficiently job related and consistent with business necessity.

The EEOC Guidelines describe three factors that the employer should consider when assessing criminal records:

  1. The nature and gravity of the offense or conduct (evaluating the harm caused, the elements of the crime, and whether the crime was a felony or misdemeanor);
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought (including essential functions, specific duties and environment).

The EEOC Guidelines state that employers will “consistently meet the ‘job related and consistent with business necessity’ defense” if the employer develops a targeted screen considering at least the three factors listed above, and then provides an opportunity for an individualized assessment for applicants excluded by the screen.

An individualized assessment means the employer:

  1. informs the applicant that he or she may be excluded based on his or her criminal record;
  2. offers the applicant an opportunity to explain why the exclusion should not apply  (for example, an applicant may be able to show the record has misidentified him, or contains other inaccuracies); and
  3. considers whether the applicant should continue to be excluded.

If the applicant refuses to provide any additional information about his or her background, the employer may make its employment decision without the information.

In sum, while a policy that automatically excludes applicants with a domestic violence criminal history may seem like a good idea, employers should refrain from having blanket screening policies that are not narrowly tailored for the specific job, because those policies may well run afoul of Title VII.  As the EEOC guidance provides, the best practice is to have a targeted screen based on the three assessment factors listed above and to provide an individualized assessment.