On April 25, 2012, the EEOC issued its first update in 20 years of its position on employers’ use of arrest and convictions records in making employment decisions.

The EEOC’s Guidance discusses employers’ use of arrest and conviction records in the context of Title VII of the Civil Rights Act’s prohibition on race and national origin discrimination. It first makes clear what most employers already know – employers cannot require or apply criminal background checks differently for one group of employees than another protected class of employees. The focus of the EEOC’s new Guidance, however, is that reliance on criminal records can have a disparate impact on certain protected groups and, therefore, violate Title VII.

According to the Guidance, an employer may make an employment decision based on a criminal record or criminal conduct only when it is “job related and consistent with business necessity.” An employer can do this by implementing and consistently applying a policy that considers the nature of the crime, the time that has elapsed since the conviction or conduct, in conjunction with the nature of the job sought. The Guidance states that an arrest does not establish that criminal conduct has occurred and is insufficiently job related for Title VII purposes, while a conviction record is reliable evidence of wrongdoing.

The Guidance states that if employers follow more stringent state or local laws they may nevertheless be held liable under Title VII unless its employment decision was job related and consistent with business necessity. Many states have enacted laws that regulate the hiring and continued employment of individuals who have been convicted of certain crimes, and these laws subject employers to penalties and sanctions for violating those laws. These laws often apply to health care providers and represent a considered judgment by a state legislature that certain criminal conduct is directly related to certain jobs and prohibiting individuals who have committed these crimes from working in those jobs is a business necessity. In many situations, compliance with these state laws is consistent with the Guidance. However, where an individual is disqualified from employment consideration consistent with a state law, an employer should consider making an independent determination that the criminal conduct is directly related to the individual’s suitability for employment and that rejecting that applicant for that specific position is consistent with business necessity.

One EEOC Commissioner, Constance Barker, dissented from the EEOC’s issuance of the guidelines, stating that the guidelines would intimidate business owners from conducting legitimate criminal background checks unless they were required to do so under another federal law. She also questioned whether the Commission had the jurisdiction to issue the Guidance.

In light of existing state laws and the EEOC’s Guidance, employers should:

  • Not inquire about arrest records
  • Review policies and practices to make sure that they do not include blanket prohibitions on the employment of individuals with any criminal records and revising hiring policies to link questions about criminal conduct to the position sought 
  • Educate managers and decisionmakers on how to determine when particular criminal conduct is a legitimate disqualifying factor for a position within the organization

In addition, employers subject to state laws requiring employment screening should consider whether and how to comply with such laws in light of the EEOC’s new Guidance.