Recently, the U.S. Equal Employment Opportunity Commission (EEOC) released its long awaited Guidance on the use and consideration of arrest and conviction records in employment decisions. This new Guidance details the prohibitions against general exclusions of candidates for employment with a criminal history, the narrow circumstances when such information may be used, and the appropriate procedures that an employer must implement in those circumstances when criminal background history will be used to exclude job applicants. The Guidance will impact every employer that considers criminal background history in its hiring, retention and promotion decisions. 

A copy of the Enforcement Guidance can be reviewed by clicking here. 

In summary, the Guidance distinguishes the differences between arrest and conviction records, noting that the existence of an arrest record, in itself, is not sufficient evidence that criminal conduct occurred and is also not sufficient to make employment related decisions.  In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in certain conduct that can be used for employment related decisions. 

In order to avoid liability under Title VII of the Civil Rights Act of 1964,  the Commission recommends the following best practices for employers who are considering criminal record information when making employment decisions:  

• Eliminate policies or practices that automatically exclude people from employment based on any criminal record, particularly just arrest records;   

• Train hiring personnel about Title VII and its prohibition on employment discrimination; and  

• Develop a narrowly tailored written policy and procedure for screening applications and employees for criminal conduct which includes: (1) identifying essential job requirements and the actual circumstances under which the jobs are performed; (2) a justifiable business necessity for particular offenses that may demonstrate unfitness for performing such jobs; and (3) an individualized assessment for each applicant or employee based on all available evidence.   

 

Any company using criminal record information should be aware of these new Guidelines and implement the practices recommended by the Commission to avoid any potential discrimination liability under Title VII.   

 

Please do not hesitate to contact us if you have any questions on the new Guidance and if you need any assistance in creating and drafting new policies.