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EEOC Announces New Enforcement Guidance On The Use Of Criminal Background Checks Under Title VII

Published by on April 27, 2012

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) announced its new Enforcement Guidance on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.  More after the break. The new Enforcement Guidance reminds employers that “even where employers apply criminal record exclusions uniformly, […]

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) announced its new Enforcement Guidance on the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.  More after the break.

The new Enforcement Guidance reminds employers that “even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin” giving rise to a disparate impact claim under Title VII unless the exclusion is job related and consistent with business necessity.  Although Title VII does not prohibit employers from obtaining criminal background checks about applicants or employees, the new Enforcement Guidance states “as a best practice, and consistent with applicable laws,” the EEOC “recommends that employers not ask about convictions on job applications.”  Several States have laws regulating the use of background information in the employment context.  For example, see the Laconic Law Blog’s post about Massachusetts’ law prohibiting employers from asking about an applicant’s criminal history.

Additionally, the Enforcement Guidance states that to survive a potential disparate impact claim, it is the EEOC’s position that most employers should develop a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment to determine if the policy as applied to the applicant or employee is job related and consistent with business necessity.  The EEOC states that although an individualized assessment is not required by Title VII in all circumstances, “the use of a screen that does not include an individualized assessment is more likely to violate Title VII.”  The EEOC includes suggested best practices for employers who consider criminal background information when making employment decisions.   

To review the new Enforcement Guidance, click here.  The EEOC also published a Questions and Answers regarding the Enforcement Guidance.  

Below are additional blog posts regarding the new Guidance:  

Ohio Employer’s Law Blog  

The Employer Handbook

Connecticut Employment Law Blog 

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