On April 25, the Equal Employment Opportunity Commission (“EEOC”) released an enforcement guidance in order to “clarif[y] and update the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment.” The EEOC, by a 4-1 vote, approved the guidance which, in essence, provides that employers may violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin, or other protected category and employers cannot demonstrate “business necessity.” Thus, the EEOC confirms, in the guidance, that it requires employers to carefully consider how and when such criminal and arrest history reviews may be used in pre-employment screenings and in the workplace because of their potential to be biased against protected classes. The EEOC enforcement guidance outlines the following advice for employers in dealing with use of arrest or conviction records:
- Employers treating job applicants or employees differently even though they have comparable criminal records may violate Title VII. For example, an employer may violate Title VII by declining to grant a follow up interview to a minority job applicant based on a criminal conviction if the employer grants a follow up interview to a white applicant with the same conviction.
- Employers may violate Title VII by enforcing a neutral policy on criminal records if that policy operates to disproportionately screen out members of a protected class. For example, if a company decides not to employ anyone with a criminal conviction, such a policy may disproportionately impact minority groups that have above average conviction rates.
If a job applicant or employee shows that an employer’s criminal record policy disparately impacts a protected group, the employer must demonstrate the policy is job related and consistent with business necessity. The EEOC considers a variety of factors when determining whether a policy is job related and consistent with business necessity.
- EEOC advises employers to distinguish between arrests and convictions. Because arrest records are not proof of criminal conduct, the EEOC warns that employers cannot exclude an applicant from employment based on an arrest record standing alone. However, the EEOC explains that employers are permitted to inquire into the facts surrounding an arrest, and may be justified in taking action based on those underlying facts.
Finally the EEOC recommends that employers adopt the following best practices:
- Eliminate policies that prohibit employment based on any criminal record;
- Develop a focused policy to screen job applicants and employees for criminal misconduct;
- Train managers and decision makers to implement the company’s criminal record policy consistent with Title VII;
- Only ask questions about applicants’ or employees’ criminal backgrounds if the questions are job related and consistent with business necessity;
- Unless required otherwise by law, maintain the confidentiality of employees’ and job applicants’ criminal records.
The EEOC guidance also notes that employers who use more stringent state or local laws and regulations to determine their employment screening processes will not be shielded from Title VII liability. The full text of the EEOC’s new enforcement guidance is available here. The EEOC also issued “Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.” available here,