EEOC Issues Guidance on Criminal Records
The Equal Employment Opportunity Commission recently issued new “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The Guidance addresses the use of criminal records by employers when making hiring or other employment decisions. As general rule, Title VII does not prohibit employers from seeking criminal history information from applicants and employees, so long as the use of such information does not result in unlawful disparate treatment or disparate impact on the basis of race, national origin, or other classification protected by Title VII. The new Guidance consolidates prior guidelines on these topics and incorporates various federal court decisions published in the past two decades. EEOC provides examples of policies and practices relating to the use of criminal histories that will consistently support a defense that the practice is “job-related and consistent with business necessity.” The EEOC also suggests certain “best practices” to avoid liability, such as developing a “narrowly tailored” written policy for screening applicants based on criminal conduct, limiting inquiries about criminal records to those that would be job-related for the position, and maintaining the confidentiality of criminal records.