EEOC Guidance on Employer Use of Arrest and Conviction Records
Posted on 4/30/2012 by Nicolas Dufour
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Posted by Nicolas Dufour, Chief Regulatory Counsel
On April 25th 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance for employers on the use of criminal background checks when hiring new employees. According to the EEOC document, the purpose of the Guidance is “to consolidate and update the U.S. Equal Employment Opportunity Commission’s guidance documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.”
The Guidance is considered to be in effect immediately and to remain in effect “until rescinded or superseded.”
The overarching concern for the EEOC is that background checks used in hiring decisions can have a disparate impact on protected classes. The Guidance recommends that employers take into consideration three factors prior to excluding an applicant from a job based on the results from a background check. Those considerations are 1) The nature and gravity of the offense or conduct; 2) the time that has passed since the offense or conduct and/or completion of the sentence; and 3) the nature of the job held or sought.
Additionally, the EEOC suggests the employer then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The EEOC advises that the individualized assessment include 1) The employer informs the individual that he/she may be excluded because of past criminal conduct; 2) the employer provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him/her; and 3) the employer considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.
The EEOC also provides a list of best practices at the report’s conclusion. What they refer to as general best practices for employers includes:
- eliminate policies or practices that exclude people from employment based on any criminal record
- train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination
From a policy best practices standpoint, the Guidance suggests employers “develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.” Employers should also:
- Identify essential job requirements and the actual circumstances under which the jobs are performed
- Determine the specific offenses that may demonstrate unfitness for performing such jobs
* Identify the criminal offenses based on all available evidence
- Determine the duration of exclusions for criminal conduct based on all available evidence
*Include an individualized assessment
- Record the justification for the policy and procedures
- Note and keep a record of consultations and research considered in crafting the policy and procedures
- Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII
To view the entire EEOC Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, go to: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
The above article is not offered as legal advice but is instead offered for informational purposes. First Advantage Corporation is not a law firm and does not offer legal advice. The above article is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research.