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The EEOC Issues New Enforcement Guidance on Employers’ use of Criminal Background Information about Job Applicants and Employees

On April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended.   This Guidance, which can be found at,  supersedes the EEOC’s two previous Guidances on this subject, issued in 1987 and 1990 respectively. 

Noting that it was not changing its fundamental positions on employers’ use of criminal arrest or conviction records, the EEOC explained that the Guidance was necessary because of new case law analyzing Title VII requirements and because of employers’ increased access to and use of criminal record information in connection with employment decisions.  According to one survey the EEOC cited, 92% of responding employers stated that they subjected some or all of their job candidates to criminal background checks.

Even though it does not substantially modify past precedent, the Guidance serves as a valuable instructional tool for employers who wish to avoid Title VII liability in connection with the use of information learned through criminal background checks.  As the Guidance makes clear, nothing in Title VII specifically prohibits employers from checking applicants’ or employees’ criminal histories or using the information discovered in connection with employment decisions.  However, if those results are used in a manner which is discriminatory based on any category protected by Title VII, then a violation of that law may occur.  According to the EEOC, arrest and incarceration rates are especially high for African American and Hispanic men.  Thus, discrimination based on race is the most likely type of discrimination claim to be filed in connection with adverse employment actions based on criminal records.

Among the instructional points made by the EEOC in this Guidance are the following:

  • Arrest records do not establish criminal conduct.  Thus, an adverse employment decision based solely on an arrest record may serve as the underlying basis for a successful Title VII claim. A policy or practice that excludes everyone with a criminal record from employment will not be considered job-related or consistent with business necessity, and may violate Title VII if found to create a disparate impact on a protected class (such as African-American or Hispanics).  Three factors should be considered in determining if an exclusion is job-related for the position in question and is consistent with business necessity:

      • The nature and gravity of the offense or conduct.
      • The time that has passed since the offense or conduct, or the completion of the sentence.
      • The nature of the job held or sought.
  • Federal laws and regulations that restrict or prohibit employing individuals with certain criminal records may provide a defense to a Title VII claim. 

The last section of the Guidance provides a list of recommendations for employers seeking to escape Title VII liability on the part of an applicant or employee excluded from employment due to a criminal record. First and foremost, it urges employers to eliminate policies or practices that exclude applicants based solely on the fact that they have a criminal record of any sort. The better practice is to identify the requirements and circumstances applicable to each particular job, and determine what specific offenses may demonstrate lack of fitness for that job. In each case, an individualized assessment should be conducted to determine if an individual should be excluded based on his or her criminal background. And, of course, employers should train managers, hiring officials and decision makers on how to implement the policies and procedures consistent with Title VII. Finally, the Guidance advises employers to keep information about applicants’ and employees’ criminal records confidential.


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