Employment-EEOC Reissues Enforcement Guidance On Employer Use of Arrest and Conviction Records To Make Employment Decisions

According to a Press Release (4/25/12), the Equal Employment Opportunity Commission (the “EEOC”) has revised its Enforcement Guidance, initially issued over 20 years ago, on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). The EEOC has also issued a Question-and-Answer (Q&A) document about the guidance. The new Enforcement Guidance and Q&A document are available on the EEOC’s website at www.eeoc.gov.

The Press Release says the following. While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The new guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago. The new Enforcement Guidance is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The new guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee. Among other topics, the new guidance discusses:

• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;

• Federal court decisions analyzing Title VII as applied to criminal record exclusions;

• The differences between the treatment of arrest records and conviction records;

• The applicability of disparate treatment and disparate impact analysis under Title VII;

• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
• Best practices for employers.