The Equal Employment Opportunity Commission recently issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.  This guidance is intended to help employers understand the EEOC’s policy relating to the use of such records by employers.  Although this guidance is not substantially different from the EEOC’s previous policy, it is a good reminder of prudent practices employers should be using. 

No federal law prohibits the consideration of criminal convictions in making employment decisions; however, improper use may result in intentional or inadvertent discrimination.  For example, if an employer uses criminal conviction records only in evaluating minority candidates, this conduct may violate Title VII’s prohibition against treating applicants differently based on their race or other protected characteristic.  Even if the employer’s policy is applied uniformly, the use of criminal conviction records may have an unintentional impact on minority candidates.  Although the employer may not intend to discriminate, this practice may result in an inadvertent adverse impact on certain classes of applicants, which may also violate Title VII. 

The EEOC’s recently issued guidance is an opportunity for employers to review their policies related to using background checks in making employment decisions.  Some critical considerations include:

  • Arrest records, as opposed to records of criminal convictions, should never be used when making employment decisions.  An arrest without a conviction does not establish that criminal conduct occurred. 
  • A blanket policy excluding all persons with a criminal background from employment will generally not pass muster.  Each applicant should be evaluated on a case-by-case basis with special attention to whether the applicant’s criminal background is job-related and consistent with business necessity.
    • For example, if an applicant has been convicted for credit card fraud, it would generally be a job-related decision to exclude him from a position that would provide him access to a database of credit card numbers. 
    • If an applicant has a history of convictions relating to driving offenses, such as driving under the influence or reckless driving, it would generally be a job-related decision to exclude her from a position that would require driving. 
    • In contrast, a history of convictions relating to driving offenses would generally not be related to a job where no driving was involved, and would not be an appropriate consideration.  
  • Employers should also consider the circumstances surrounding the applicant’s criminal history, including the time elapsed since the conviction and any extenuating circumstances. 

The EEOC’s guidance may be found here.