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EEOC Issues New Guidelines On Using Arrest And Convictions Records

by Beverly Aarons 14. May 2012 10:58

The U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance for employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.  The new guidance warns employers that using arrest and conviction records in their employment decisions could make them vulnerable to EEOC claims.

While the Civil Rights Act of 1964 only prohibits employers from discriminating against employees and applicants based on race, color, national origin, religion, or sex; discriminating against employees/applicants who have an arrest or criminal record could have a disparate impact on protected classes. And since the EEOC has used disparate impact and disparate treatment as two of the variables they examine when investigating EEOC claims, the use of criminal history in employment decisions could leave some employers in violation of EEOC rules. This is what the EEOC is suggesting:

1.      Only conduct criminal background checks if it is relevant to the job. And if an employer conducts a criminal background check it should only be for specific offenses that might impact the employee’s ability to do their job.

2.      Even if an applicant or employee has a conviction, the employer should consider the seriousness of the crime and how long ago the crime was committed before using the conviction as a reason to deny employment.

3.      The EEOC has stressed that an arrest cannot be used as evidence of a crime; but that it may be permissible for an employer to consider the applicant’s conduct at the time of the arrest if their behavior would make them an unsuitable employee. 

4.      The EEOC has also suggested that employers give the applicant an opportunity to show why their criminal history should not be used as reason to exclude them from employment.  


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