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EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII:  Conviction Records

February 29, 2012

[address]

Dear ____:  

            This responds to your letter to the U.S. Equal Employment Opportunity Commission (EEOC or Commission) regarding the Federal Deposit Insurance Corporation's (FDIC) regulation for FDIC employees in 12 CFR part 336.  In your letter, you inquire why the Commission did not comment on the FDIC's proposed regulation, published in the Federal Register in February 1996.[1]  Specifically, you assert that the Commission had a responsibility to comment on a proposed provision in the regulation that prevents individuals convicted of any felony from being employed by the FDIC.[2]   

The EEOC's Responsibilities

            As you know, the EEOC is the federal agency responsible for enforcing the federal equal employment opportunity (EEO) laws, including Title VII of the Civil Rights Act of 1964, as amended (Title VII).[3]  Title VII prohibits employment discrimination on the basis of race, color, religion, national origin, or sex.  The EEOC is also responsible for "provid[ing] leadership and coordination to the efforts of Federal departments and agencies to enforce all Federal statutes, Executive orders, regulations, and policies which require equal employment opportunity without regard to race, color, religion, sex, national origin, age or handicap."[4]  In conjunction with its coordination duties, the EEOC may, in its discretion, choose to consult with other agencies or departments as they develop rules or regulations that implicate the federal EEO laws.  The EEOC's decisions about this process are confidential because they are part of the EEOC's and the government's deliberative process.  Accordingly, we have no comment on your specific question. 

Title VII and the Use of Criminal Records in Employment Decisions

            The Commission has issued several written policies that apply Title VII principles to employers' use of criminal records when making employment decisions. [5]  Under Title VII, covered employers must treat similarly situated individuals the same with respect to employment opportunities if they have comparable criminal records.  Additionally, because disproportionate numbers of African Americans and Hispanics have criminal records, the use of such information to make employment decisions is likely to have a disparate impact on them.  Under Title VII, this means that a criminal record exclusion must be "job related for the position in question and consistent with business necessity."[6]  Commission guidance identifies three factors to consider when making this assessment: (1) the nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.[7]

The FDIC's Employment Regulation

The Resolution Trust Corporation Completion Act of 1993 (the Completion Act or the Act) amended section 12 of the Federal Deposit Insurance Act, 12 U.S.C. § 1822, to "prohibit any person [from entering into any contract, becoming employed, or providing any service for or on behalf of the FDIC] who does not meet minimum standards of competence, experience, integrity, and fitness."[8]  The Completion Act expressly directs the FDIC to issue regulations prohibiting any person from being employed with the agency who has been convicted of a felony.[9]  In February and June 1996, the FDIC published a proposed and final regulation in the Federal Register prohibiting the FDIC from employing anyone with a felony conviction.[10]  It is clear that the FDIC issued this regulation pursuant to the Completion Act.

Congressional Authority to Enact Section 12 of the Federal Deposit Insurance Act

            Finally, in your letter, you question Congress's constitutional authority to enact the amendments to section 12 of the Federal Deposit Insurance Act.  The constitutionality of federal statutes and congressional authority is outside the Commission's purview.  Therefore, we offer no comment on these arguments.

            Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.

                                                                                                Sincerely,

                                                                                                s/

                                                                                                Peggy R. Mastroianni

                                                                                                Legal Counsel

 

[1]               See 61 Fed. Reg. 5956 (proposed Feb. 15, 1996)(to be codified at 12 C.F.R. pt. 336).  The final rule was published in the Federal Register on June 6, 1996. See 61 Fed. Reg. 28,725.   

[2]               The provision is now at 12 C.F.R. § 336.4(a)(1).

[3]               42 U.S.C. § 2000e et seq.   See also 42 U.S.C. § 2000e-16(a) (prohibiting discriminatory employment practices by federal departments and agencies). 

[4]               Exec. Order No. 12,067, § 1-201, 3 C.F.R. 206 (1978). 

[5]               See Compliance Manual Section 15: Race & Color Discrimination, U.S. Equal Employment Opportunity Comm'n, § 15-VI.B.2 (April 19, 2006),

race-color.pdf ; Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII, U.S. Equal Employment Opportunity Comm'n  (Sept. 7,1990), https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions;

[6]               See 42 U.S.C. § 2000e-2(k)(1)(A)(i).       

[7]               See Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977).  See also the Commission's policy documents analyzing these three factors supra note 5. 

[8]               12 U.S.C. § 1822 (f)(4)(B)(i)-(ii).  See also 61 Fed. Reg. at 5956. 

[9]               Id. § 1822 (f)(4)(E)(i). 

[10]See 61 Fed. Reg. at 5957; 61 Fed. Reg. at 28,728.  The provision is now at 12 C.F.R. § 336.4(a)(1).

This page was last modified on April 6, 2012.

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