On April 25, 2012, the U.S. Equal Employment Opportunity Commission published its guidance on the use of arrest and conviction records in employment-related decisions. While Title VII does not specifically prohibit discrimination on the basis of an individual’s criminal background, courts have long held that employment decisions based upon arrest and court records that have a disparate impact on individuals’ protected characteristics (e.g., race, color, religion, sex, national origin, etc.) are unlawful under Title VII.  

Under established case law, employers seeking to make a decision based on an individual’s criminal conviction should establish that the exclusion of an applicant or employee due to a criminal conviction was job-related and consistent with business necessity, taking into account the following factors: (1) the nature and gravity of the offense or conduct; (2) the time period elapsed since the offense was committed and/or completion of the sentence; and (3) the nature of the job held or sought.  

The EEOC publication embraces this recognized standard, but also provides further guidance and recommendations designed to help employers comply with Title VII:  

  • Employers may consider convictions but not arrests. Employers should never consider arrests because an arrest is not evidence that criminal conduct has occurred. However, while an employer cannot make a decision based on the mere fact that an arrest occurred, it certainly can (and should) investigate whether the conduct underlying the arrest justifies an adverse action. The EEOC guidance emphasizes that the underlying conduct, and not the arrest itself, is potentially relevant for employment purposes.  
  • Employers should develop a “targeted screen.” Targeted screens – i.e., those that consider the nature of the crime, the time elapsed, and the nature of the job – are more likely to meet the “job-related and consistent with business necessity” test, whereas blanket inquiries (e.g., “have you ever been convicted of a crime?”) are more likely to be problematic.  
  • Employers should not ask about criminal convictions on job applications. Instead, employers should inquire into criminal records only after the employer is knowledgeable about the applicant’s qualification and experience. If employers do ask about convictions on job applications, the inquiries should be limited to convictions that are job-related and consistent with business necessity.  
  • Employers should perform an “individualized assessment.” An individualized assessment would consist of notice to the individual that he or she has been screened out because of a criminal conviction, providing the individual an opportunity to explain and present information to show why he or she should not be excluded, and consideration by the employer of the explanation and information presented by the individual. Evidence that may be considered by employer as part of this assessment includes: the circumstances surrounding the offense, the number of offenses for which the individual was convicted, the age of the individual at the time of conviction or release, evidence that the individual performed the same type of work for the same or another employer without incident, the length and consistency of employment history before and after the offense, rehabilitation efforts, employment or character references and whether the individual is bonded under a government bonding program.  

In light of this new guidance, employers that currently utilize criminal background checks as part of the employment screening process should thoroughly examine their policies and procedures. At very least, employers should not categorically screen out applicants or employees based on criminal convictions, but rather should perform an individualized assessment that includes discussing the conviction with the individual. (Employers should also note that state laws often contain additional requirements regarding criminal background checks that must also be complied with.)