EEOC Updates Guidance for Employers Using Arrest and Conviction Records


Lester Rosen, J.D.
CEO, Employment Screening Resources

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal laws prohibiting employment discrimination in the U.S., issued updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

On a Q & A page, the question on how the EEOC’s updated Enforcement Guidance differs from earlier policy statements is answered:

  • It discusses disparate treatment analysis and gives examples of applicants with the same qualifications and criminal records being treated differently because of race or national origin in violation of Title VII.
  • It explains the legal origin of disparate impact analysis.
  • It explains two circumstances where employers may consistently meet the “job related and consistent with business necessity” defense: 1) The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures; or 2) The employer develops a targeted screen considering the nature of the crime, the time elapsed, and the nature of the job, then provides an individualized assessment to determine if the policy is job related and consistent with business necessity.
  • It states that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim.
  • It says state and local laws or regulations are preempted by Title VII if they “require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

The Enforcement Guidance also recommends “best practices” for employers using criminal records:

  • Eliminate policies or practices excluding people from employment based on any criminal record.
  • Train managers, hiring officials and decision makers about Title VII and its prohibitions on employment discrimination.
  • Develop narrowly tailored written policy and procedures for screening criminal records.
  • Determine specific offenses that may demonstrate unfitness for performing such jobs.
  • Determine the duration of exclusions for criminal conduct based on all available evidence and include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultants and decision makers on how to implement the policy and procedures consistent with Title VII.
  • Limit inquiries about criminal records to records for which exclusion would be job related for the position in question and consistent with business necessity.
  • Keep information about criminal records confidential and only use for the intended purpose.

Mr. Rosen will share best practices on using background checks as part of your anti-fraud program at the 23rd Annual ACFE Fraud Conference at his session, Employment Background Checks: Stopping Employee Fraud at the Point of Entry.