eTrends - EEOC Issues New Guidance on Using Criminal Background Checks in Employment Decisions

On April 25, 2012, the Equal Employment Opportunity Commission ("EEOC") issued enforcement guidance consolidating and updating its previous guidance on employers' use of arrest and conviction records in employment decisions. In its new guidance, the EEOC states that excluding individuals from employment based on arrest or conviction records may violate Title VII if doing so disproportionately screens out individuals in a protected class. A practice or policy that has a disparate impact on a protected class violates Title VII unless the employer can show that the practice or policy is job-related and consistent with business necessity. The new guidance cautions against excluding individuals based on arrest records alone and emphasizes the importance of ensuring that any exclusion based on past criminal conduct is job-related and consistent with business necessity for the position in question. In addition, the new guidance strongly recommends that employers make an individualized assessment before excluding a person from employment based on past criminal conduct.

The EEOC's new guidance emphasizes the distinction between arrest records and conviction records, noting that the fact that an individual was arrested does not necessarily mean that he or she engaged in any criminal conduct. As a result, the EEOC takes the position that excluding a person from employment based solely on past arrests is not job-related or consistent with business necessity. Nevertheless, the guidance also suggests that conduct related to an arrest might provide a basis for exclusion if that underlying conduct makes the person "unfit for the position in question." With respect to criminal convictions, the EEOC acknowledges that a conviction is usually sufficient evidence that criminal conduct occurred. An exclusion based on prior criminal conduct, however, must still be job-related and consistent with business necessity for the particular position in question. For this reason, the EEOC recommends that employers refrain from asking about convictions in job applications and limit inquiries about convictions to the types of convictions that might justify an exclusion as being job related and consistent with business necessity.

In its new guidance, the EEOC acknowledges that the use of validated criminal conduct exclusions or targeted screens may be job-related and consistent with business necessity. In the EEOC's view, a targeted screen should involve, at a minimum, consideration of (1) the nature and gravity of the offense; (2) how much time has passed since the offense and/or completion of any resulting sentence; and (3) the nature of the job in question. The EEOC also strongly recommends that employers who use a targeted screen provide an individualized assessment for individuals identified for exclusion by the screen. This individualized assessment would involve giving "notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion."

The EEOC's new guidance provides an important reminder to employers to review their current criminal background check policies and procedures. In addition, employers who use third parties to conduct background checks should ensure that they are in compliance with the federal Fair Credit Reporting Act.

View the EEOC's enforcement guidance.

Please contact Susan Parrott with any questions.

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