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.
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
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.