HR Management & Compliance

EEOC Updates Guidance on Use of Arrest, Conviction Records in Employment

Background CheckThe Equal Employment Opportunity Commission (EEOC) has released new guidance related to employers’ use of applicant and employee arrest and conviction information.

The new guidance, approved in a 4-1 vote during a meeting on April 25, includes information on how an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against discrimination under Title VII of the Civil Rights Act of 1964. The new guidance explains that an employer’s use of criminal history must be “job related and consistent with business necessity.”

The best practices section of the guidance advises employers to eliminate policies or practices that automatically exclude people from employment because of any criminal record. It also says employers should train managers and hiring officials about Title VII and its prohibition on employment discrimination.

The guidance says employers should “develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.” That means employers first should determine what offenses may signal unfitness for a particular job and then they should include an “individualized assessment” in which the employer informs the applicant or employee that he may be excluded because of criminal conduct. The employer then should give the individual an opportunity to explain why the exclusion may not be “job related and consistent with business necessity.”

In addition to the guidance document, the EEOC released questions and answers, which, among other things, explain how the new document differs from previous guidance, why the agency decided to update its policy, and how employers can legally use criminal history.

The EEOC says the new guidance provides more in-depth analysis of the issue than three previous guidance documents issued twice in 1987 and again in 1990. The new document discusses disparate treatment in more detail and gives examples of situations in which applicants with the same qualifications and criminal records are treated differently because of their race or national origin in violation of Title VII.

The question-and-answer document also explains the two ways in which an employer’s use of criminal history information may violate Title VII — disparate treatment discrimination and disparate impact discrimination.

Disparate treatment discrimination occurs when an employer treats job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Disparate impact discrimination occurs when employers don’t show that an individual’s exclusion is job related and consistent with business necessity. Such instances can disproportionately exclude people of a particular race or national origin.

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