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:
The EEOC’s guidance may be found here.