On April 25, 2012 the EEOC issued its updated guidance on the extent to which employers may use an individual’s criminal history in making employment decisions. The EEOC has long held that the use of criminal histories in the hiring process is most likely illegal as a violation of Title VII of the Civil Rights Act of 1964 if the hiring decision relied solely on the individual’s criminal history.

The new guidelines prescribe that employers may use criminal histories if the employer can show that it considered three factors:  1) The nature and gravity of the offense; 2) The amount of time since the conviction; and, 3) The relevance of the offense to the type of the job being sought.  In determining whether a policy to review criminal history is job related, the EEOC has suggested that employers must distinguish between unacceptable and acceptable risks in candidates with criminal histories, and exclusion policies must link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

The new guidelines do not outlaw criminal background checks, but the EEOC has stated that policies that exclude everyone with a criminal record are not job related and consistent with business necessity and will violate Title VII, unless it is required by federal law.  Additionally, the EEOC has indicated that it believes that employers who rely upon arrest records, as opposed to a record of convictions, are not satisfying the law’s requirement that the policy be job related and consistent with business necessity.  Lastly, the EEOC has recommended that employers not ask about criminal histories on job applications.  This is in keeping with many state efforts to “ban the box,” a reference to a box checked on an application regarding the existence of criminal history.

What Employers Should Do

It is vitally important that if employers have a policy to consider criminal histories in their hiring process, that the policy be very narrowly tailored.  Also, the employer should identify specific job duties and determine what it is about those job duties that present a risk with the hiring of someone who has been convicted of a specific criminal offense.  Finally, train all individuals who are involved in the hiring process about the EEOC’s new guidelines to make sure that they are following your hiring criteria.