EEOC cautions employers on use of criminal history in employment decisions

The federal Equal Employment Opportunity Commission (EEOC) has issued updated guidance for employers on the use of an applicant’s criminal history, including arrests and convictions, when making employment decisions. The EEOC has long maintained the position that arrest records, unlike criminal convictions, are not reliable indicators of criminal conduct, but an employer may take into account evidence of behavior that disqualifies an individual from a particular position. The agency is concerned that excluding applicants based on a history of arrests or criminal convictions will disproportionately screen out applicants on the basis of race and national origin. Therefore a policy or practice that automatically excludes all applicants with a criminal record is a violation of Title VII, the federal law prohibiting discrimination in the workplace (unless such a screen is otherwise required by federal law). However, if screening out an individual with a criminal history is “job related and consistent with business necessity” then it is not a violation of Title VII.
 
Under this new guidance, the agency provides an explanation of how it determines whether a hiring standard is “job related and consistent with business necessity” and provides examples. It also notes that there are two circumstances in which an employer meets the “job related and consistent with business necessity” standard: the employer validates the criminal conduct exclusion in light of the EEOC’s Uniform Guidelines on Employee Selection Procedures (29 CFR Part 1607); or it makes an individualized assessment of any individual screened out on the basis of past criminal conduct, considering at least the nature of the crime, the time elapsed, and the nature of the job. Once you determine that someone should be screened out on the basis of a criminal conviction, the EEOC expects you to give the individual an opportunity to explain why they shouldn’t be excluded—for example, by providing evidence of rehabilitation.