EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records | Practical Law

EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records | Practical Law

The Equal Employment Opportunity Commission (EEOC) issued updated guidance and related questions and answers on employer use of arrest and conviction records in making employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).

EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records

Practical Law Legal Update 6-519-1435 (Approx. 4 pages)

EEOC Issues Updated Guidance on Employer Use of Arrest and Conviction Records

by PLC Labor & Employment
Published on 25 Apr 2012 • USA (National/Federal)
The Equal Employment Opportunity Commission (EEOC) issued updated guidance and related questions and answers on employer use of arrest and conviction records in making employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).
On April 25, 2012, the EEOC released:
The new guidance clarifies and updates EEOC policy on employer use of arrest and conviction records in employment decisions under Title VII. Although Title VII does not directly regulate criminal history information, an employer's use of criminal history information may violate Title VII if the employer either:
  • Treats job applicants with the same criminal records differently based on their race, color, religion, sex or national origin (disparate treatment discrimination).
  • Disproportionately excludes certain job applicants or employees with criminal histories even where the employer applies criminal record exclusions uniformly (disparate impact discrimination).
The EEOC updated the guidance to both incorporate judicial decisions issued since the passage of the Civil Rights Act of 1991 and build on EEOC policy documents issued more than 20 years ago. The guidance provides more detail on disparate impact discrimination, including examples of situations where applicants with the same criminal records and qualifications were treated differently because of their race or national origin. The guidance also describes:
  • The differences between the treatment of arrest records and conviction records.
  • Federal court decisions applying Title VII to criminal record exclusions.
  • Other federal laws and regulations governing the employment of individuals with criminal records.
Although the guidance does not have the force of law, EEOC staff will rely on it when investigating discrimination claims involving an employer's use of criminal records. The EEOC also intends the guidance to be used by:
  • Employers in considering when and how to use criminal records in hiring or other employment decisions.
  • Individuals who believe they have been discriminated against based on their criminal record.
For more information on EEOC employment discrimination claims, see Responding to an EEOC Charge Toolkit. For resources on hiring, see Employee Hiring and Orientation Toolkit.