EEOC Issues Revised Guidance on Use of Criminal Records in Employment Decisions

19 May 2012 Labor & Employment Law Perspectives Blog
Authors: Jessica Glatzer Mason

The Equal Employment Opportunity Commission recently issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.  This guidance is intended to help employers understand the EEOC’s policy relating to the use of such records by employers.  Although this guidance is not substantially different from the EEOC’s previous policy, it is a good reminder of prudent practices employers should be using. 

No federal law prohibits the consideration of criminal convictions in making employment decisions; however, improper use may result in intentional or inadvertent discrimination.  For example, if an employer uses criminal conviction records only in evaluating minority candidates, this conduct may violate Title VII’s prohibition against treating applicants differently based on their race or other protected characteristic.  Even if the employer’s policy is applied uniformly, the use of criminal conviction records may have an unintentional impact on minority candidates.  Although the employer may not intend to discriminate, this practice may result in an inadvertent adverse impact on certain classes of applicants, which may also violate Title VII. 

The EEOC’s recently issued guidance is an opportunity for employers to review their policies related to using background checks in making employment decisions.  Some critical considerations include:

  • Arrest records, as opposed to records of criminal convictions, should never be used when making employment decisions.  An arrest without a conviction does not establish that criminal conduct occurred. 
  • A blanket policy excluding all persons with a criminal background from employment will generally not pass muster.  Each applicant should be evaluated on a case-by-case basis with special attention to whether the applicant’s criminal background is job-related and consistent with business necessity.
    • For example, if an applicant has been convicted for credit card fraud, it would generally be a job-related decision to exclude him from a position that would provide him access to a database of credit card numbers. 
    • If an applicant has a history of convictions relating to driving offenses, such as driving under the influence or reckless driving, it would generally be a job-related decision to exclude her from a position that would require driving. 
    • In contrast, a history of convictions relating to driving offenses would generally not be related to a job where no driving was involved, and would not be an appropriate consideration.  
  • Employers should also consider the circumstances surrounding the applicant’s criminal history, including the time elapsed since the conviction and any extenuating circumstances. 

The EEOC’s guidance may be found here.


This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services