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EEOC Updates Enforcement Guidance on Employers' Use of Criminal Histories

On April 25, 2012, the Equal Employment Opportunity Commission approved updated enforcement guidance in order to clarify its policy concerning the use of arrest and conviction records in employment. Although the EEOC does not bar the use of criminal background checks, employers may violate Title VII if they intentionally discriminate against individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin or other protected category with which employers cannot demonstrate a business necessity.

The enforcement guidance confirms that employers must carefully consider how and when such criminal and arrest records may be used in pre-employment screenings because of the potential for bias against protected classes under Title VII. The new guidance enforcement advises employers to distinguish between arrests and convictions. The EEOC warns that employers cannot exclude an applicant from employment based on an arrest record alone. Employers are, however, permitted to inquire into the facts surrounding an arrest and may be justified in taking action based on those underlying facts. In addition, the EEOC notes that convictions are more trustworthy than arrests, but still recommends that “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.”

The EEOC provided two examples of when an employer’s policy regarding criminal conduct will normally meet the threshold of showing job-relatedness and business necessity:

  • The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Section Procedures standards; or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed since the offense or completion of the sentence, and the nature of the job, 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 enforcement guidance also suggests best practices for employers, including the following:

  • Eliminate policies or practices that exclude people from employment based solely on any type of arrest or criminal record.
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct by identifying essential job requirements and determining specific offenses that may demonstrate the individual is unfit for the job.
  • Only ask questions about applicants’ or employees’ criminal backgrounds if the questions are job related and consistent with business necessity.
  • Unless otherwise required by law, keep criminal records confidential.

The full text of the enforcement guidance can be found here. Although these new EEOC guidelines are not binding in federal courts, they represent the way the EEOC will investigate and enforce Title VII relating to the use of criminal histories. Employers should review their current policies and procedures to determine if a change is needed and determine if assistance from employment law counsel is necessary.

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