The U.S. Equal Employment Opportunity Commission (EEOC) on Wednesday, April 24, 2012, approved a guideline restricting employers’ ability to consider criminal history in hiring decisions. Under the new “Guidance,” taking an individual’s arrest and conviction records into account may constitute discrimination under the Title VII of Civil Rights Act of 1964.

Even an employer’s neutral policy of excluding applicants with criminal records may be deemed discriminatory.  According to the EEOC, certain races and nationalities may be disproportionately impacted by hiring decisions based on criminal history, a category of discrimination known as “disparate impact liability” under Title VII.

The EEOC is a federal agency that enforces laws against workplace discrimination. The EEOC’s enforcement guidance does not carry the weight of regulation, but it does advise courts in discrimination cases. This means that some employers may now have to reconsider requiring criminal background checks for future hires.

The new Guidance does not prohibit use of criminal history records in every hiring decision. The EEOC clarified that such records are a valid criterion where they are “job related and consistent with business necessity.” This requires the showing of a link between the criminal conduct, its dangers, and the tasks inherent in a particular position.

The practical application of this standard is not always clear.

Also, some industries are subject to statutory or regulatory requirements prohibiting individuals with criminal histories from holding certain jobs, such as airport security screeners and HAZMAT truck drivers.