EEOC Issues Guidance on Use of Criminal History in Hiring

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The EEOC, in a 4-1 bi-partisan vote, has issued a new Enforcement Guidance on Employer's use of Arrest and Conviction Records in employment decisions under Title VII. The Guidance updates the Commission’s 1987 and 1990 policy statements on this issue. While the guidance does not prohibit the use of criminal history, the EEOC does highlight a number of areas where it believes use of this information will have discriminatory effect. In short, the EEOC describes two ways in which an employer’s use of criminal history information may be discriminatory. First, Title VII prohibits employers from treating job applicants or employees with the same criminal records differently because of their race, national origin, or another protected characteristic. Second, the law also prohibits disparate impact discrimination. This means that, if criminal record exclusions operate to disproportionately exclude people of a particular race or national origin, the employer has to show that the exclusions are “job related and consistent with business necessity.” To demonstrate that use of the criminal history is “job related and consistent with business necessity” the employer must show it (1) considers at least the nature of the crime, the time elapsed since the criminal conduct occurred, and the nature of the specific job in question, and (2) gives an applicant who is excluded by the screen the opportunity to show why he should not be excluded.The full guidance can be found at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm