EEOC Guidance on Arrest and Conviction Records

June 21, 2012

The Equal Employment Opportunity Commission (EEOC) has approved its first Enforcement Guidance in more than 20 years on employers' use of arrest and conviction records in making employment decisions.

As part of its E-RACE (Eradicating Racism and Colorism from Employment) initiative, the EEOC has focused recently on employment policies that prohibit or curtail hiring of applicants with criminal convictions. The EEOC concluded that those policies have a "disparate impact" on African-American and Hispanic applicants, and has been pursuing claims against employers based on these kinds of policies.

The focal point of the guidance is the EEOC's strong recommendation that, to defend against a showing that a criminal background policy has a disparate impact, employers should:

develop and use a screening process that takes into account the nature and gravity of the offense, how long ago the offense occurred, and the nature of the job held or sought,
conduct an individualized assessment of any applicant initially screened out based on a criminal conviction, to give him or her the opportunity to explain the particular circumstances an evaluate whether to make an exception to its criminal records policy based on the information provided by the applicant,
avoid asking about convictions on employment applications; or if you ask about convictions, include a statement that "a conviction will not necessarily disqualify you from employment,"
refrain from asking about arrests or making arrest records the basis of any employment decision, and
if challenged, be able to independently demonstrate that a refusal to hire an applicant was job-related and consistent with business necessity.

In light of the EEOC issuing the Guidance and the commission's increased scrutiny of employers' criminal background check policies, SESCO recommends:

provide training on the requirements of Title VII and the EEOC's guidance to HR/Management who administer and/or consider criminal background checks,
review your criminal background check policies and practices and, if necessary, revise them to take into account relevance of the offense to the job held or sought,
adopt an individualized assessment of applicants as part of your process, and
develop a formal and defensible screening and hiring process including customized questions, screening tools, skills and personality assessments and reference checking.

If you have questions or need assistance in addressing screening and hiring processes and system including criminal background checks, contact SESCO at 423-764-4127 or by email at sesco@sescomgt.com.