EEOC issues updated guidance on use of criminal background checks

On May 8, 2012
Law books

The U.S. Equal Employment Opportunity Commission (EEOC) on April 25 issued an updated Enforcement Guidance document that addresses the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. According to the EEOC chairwoman, “the new document clarifies and updates the longstanding policy concerning the use of arrest and conviction records in employment.”

In addition to the enforcement guidance document, the EEOC also released a list of frequently asked questions. Among other topics, the two documents address the following issues.

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII.
  • The differences between arrest and conviction records.
  • Disparate treatment and disparate impact analysis under Title VII.

1. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
2. An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

  • How the EEOC analyzes the “job related and consistent with business necessity” standard for criminal record exclusions.
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records.
  • Best practices for employers.

Employers are encouraged to speak with counsel regarding the enforcement guidance.  Prior to the release of the new guidance document, the Associated Builders & Contractors on Feb. 1 and April 18 joined several organizations in writing to the EEOC to express concerns about “any change to the longstanding and appropriate EEOC guidance that would impede the ability of employers to continue to use criminal-background checks to make informed hiring decisions.”
The group also requested greater transparency in the guidance drafting process, such as making a draft of the guidance available to the public and subjecting it to public comment prior to its formal adoption.
The EEOC news release on the new guidance document and FAQs is available Here.

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