POSTED BY RICHARD D. TUSCHMAN ON MAY 1, 2012
The Equal Employment Opportunity Commission has updated its enforcement guidance on employers’ use of arrest and conviction records in making employment decisions.
The enforcement guidance consolidates and clarifies prior EEOC guidance in light of judicial decisions on the use of arrest and conviction records. The guidance clarifies that the selective use of arrest and conviction records may constitute disparate treatment discrimination in violation of Title VII. The guidance also explains how a neutral policy or practice that has the effect of screening out a protected group may violate Title VII under a disparate impact theory if the employer cannot show that the policy or practice is job related for the position in question and consistent with business necessity. Exclusions based solely on arrests will never meet this test, but conviction-based screens may, if the employer considers the nature of the crime, the length of time since the crime, and the job requirements.
Of particular interest are the “best practices” the EEOC recommends when employers are considering using criminal records in making employment decisions. These “best practices” are:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination and how to implement policies and procedures consistent with Title VII.
Developing a Policy
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
Questions about Criminal Records
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.