On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised guidelines relating to the use of an individual’s criminal record information in making employment-related decisions. See Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, U.S. Equal Employment Opportunity Commission” (2012) (hereinafter “Guidelines”). While the EEOC has long looked skeptically on an employer’s use of criminal record information, the Guidelines now provide greater insight into when employers can use such information.

Generally, the use of criminal record information obtained through background checks is governed by the Fair Credit Reporting Act (FCRA), not Title VII. In August 2009 and January 2012, Snell & Wilmer published Workplace Word articles explaining the application and requirements of the FCRA along with penalties associated with violation of that statute. The FCRA does not regulate what criminal information is obtained, but rather how it is obtained.

The EEOC Guidelines focus more on the use of the criminal record information and the potential consequences pursuant to Title VII. According to the EEOC, Title VII is relevant to the use of an employee’s criminal history because:

  1. Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex or national origin (“disparate treatment discrimination”).
  2. Even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

See "Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, Equal Employment Opportunity Commission" (2012) (hereinafter “Q&As”). In those Q&As, the EEOC adds that “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.” Id. The Guidelines state that “[a] policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.” Id.

In the Guidelines, the EEOC offers employers some direction on how to deal with criminal record information in making employment-related decisions. The EEOC encourages employers to engage in an individualized assessment instead of a blanket policy or practice and consider convictions, not arrests. In doing so, the employer should take into account (1) the nature of the crime; (2) the time elapsed; and (3) the nature of the job. The Guidelines also permit the employer to consider other factors.

  • In addition to those general parameters, the EEOC recommends employers adopt best practices in considering criminal record information when making employment decisions. Those best practices generally include:
  • Training managers, hiring officials and decision makers about Title VII and its prohibitions on employment discrimination.
  • Eliminating blanket policies that automatically exclude individuals based on their criminal record.
  • Limiting the inquiry into an employee’s criminal record to those types of convictions that are potentially job-related for the position in question and supported by business necessity.
  • Developing narrowly tailored policies and procedures governing the screening of prospective and current employees that allow for individualized consideration.
  • Keeping information about applicants’ and employees’ criminal records confidential.

These Guidelines raise issues for any employer that uses criminal record information as part of their policies and practices.

The EEOC has actually stepped up its scrutiny of those employers who make employment-related decisions based on information obtained from background checks. Litigation concerning violation of the FCRA is also rising to levels not seen before. Counsel may be helpful to employers in determining whether their  background check policies comply with both the FCRA and Title VII.