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EEOC Guidance Issued on Employer Use of Arrest and Conviction Records

Tuesday, October 30, 2012 12:26

The new EEOC enforcement guidance outlines the framework officials will use to determine the legality of an employer’s criminal background check policy. This guidance makes clear that there is a presumed disparate impact on black and Latino job applicants whenever an employer excludes applicants on the basis of conviction records because those groups are over-represented in the criminal justice system.

The EEOC’s guidance provides three factors an employer must consider when evaluating applicants’ conviction records to demonstrate business necessity:

  • Nature and gravity of offense
  • Amount of time that has passed since the conviction or completion of the sentence
  • Nature of the job held or sought

Further, the guidance advocates that employers engage in “individualized assessments”, meaning that should an employer determine that an individual’s conviction record prevents the person’s hire or retention, the EEOC expects (but does not require) the employer to:

  • Inform the individual that he/she may be excluded because of past criminal conduct.
  • Provide an opportunity for the individual to demonstrate that the exclusion does not properly apply to him/her.
  • Consider whether additional information provided by the individual shows that the policy as applied is not job-related and consistent with business necessity.

This guidance leads employers to several areas of concern, not the least of which is the statement by the EEOC that Title VII pre-empts a state or local law requiring a criminal background check if the check is not job related and consistent with business necessity. Guidance that employers not ask about convictions in employment applications may also lead companies to eliminate what has been a sound business practice.

Employers should assess their hiring protocol and the use of criminal background checks to ensure their practices and policies are tailored to meet business needs while being mindful of related legal risks and state/local law issues.

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