EEOC Guidance on Criminal Record Checks

The EEOC issued on April 25, 2012, its final, updated “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under title VII of the Civil Rights Act of 1964.”

Title VII prohibits employers from (a) treating job applicants with the same criminal records differently because of their race, sex, color, religion or national origin and/or (b) applying the exclusions of those with criminal record uniformly, but in a way that disproportionately and unjustifiably excludes applicants of the same protected categories.

If the employer’s screening policy has such a disparate impact on protected minority groups, it can be legally justified if the screening is job related and consistent with business necessity. The EEOC Guidance discusses at length the standard for defending a criminal record screening as job related and consistent with business necessity.

The fact of an arrest does not establish that criminal conduct occurred. Employers may act based on evidence of conduct that disqualifies an individual for a particular position.

Convictions are reliable evidence that criminal conduct occurred.

The Guidance also recommends that an “individualized assessment” should be made by an employer in virtually all situations before the employer disqualifies an individual for employment based on past criminal conduct.  The employer should assess: (1) the facts or circumstances surrounding the offense or conduct; (2) the number of offenses for which an individual was convicted; (3) the applicant’s age at the time of conviction and current age; (4) whether the applicant performed a similar job after conviction without additional criminal conduct; (5) the length and consistency of employment history before and after the offense or conduct; (6) rehabilitation efforts, including education and training; (7) employment or character references; and (8) whether the job requires that the applicant be bonded under a federal, state, or local bonding program.