EEOC Issues New Guidance on the Use of Arrest and Conviction Records in Employment Decisions

Contributed by Jill Cheskes

On April 24, 2012, by a 4-1 vote, the EEOC issued guidance that stated that Title VII does not prohibit the use of criminal background checks but that employers could violate Title VII if they intentionally discriminate against individuals with a criminal history or if their policies have a disparate impact based on race or national origin absent business necessity.  The EEOC stated that “individualized assessments” should occur when an employer receives negative information from a background check so as not to discriminate.  Nothing in Title VII requires any individualized assessment but the EEOC guidance now does.

Additionally, the EEOC stated that following state and local law may not be a defense.  The EEOC also recommended that employers “ban the box” on the application form that asks employees if they have been convicted of a felony.  The guidance does not, in any way, prohibit background checks, however, this suggestion of “banning the box” has been met with opposition. 

Practically speaking, there is little reason for an employer to do such a thing and certainly Title VII does not require it.  Quite honestly, an employer faces a host of other liability issues if they fail to perform a background check that would have revealed negative information.  At the end of the day, the guidance probably does not do more than most employers are likely already undertaking with these issues but the EEOC is now saying some of these things are required under Title VII. 

Employers are still able to use this information to deny employment but they must assess whether the hiring policies intentionally discriminate or have a disparate impact on minority candidates.