EEOC Updates Guidance on Criminal Records

In a move that clarifies long standing agency policy, the Equal Employment Opportunity Commission (EEOC) has issued updated enforcement guidance on employers’ use of arrest and conviction records in employment decisions.

The Commission met last July to discuss the use of criminal records under Title VII of the federal Civil Rights Act. The agency considered testimony from two public hearings and hundreds of written comments on the topic.

The new guidance is based on federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant’s or employee’s criminal history, says the EEOC, and incorporates judicial decisions issued since passage of the Civil Rights Act in 1991.

The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue, and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the criminal records of a current or prospective employee. Among other topics, the guidance discusses:

• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against 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 or prohibit the employment of individuals with certain criminal records; and
• Best practices for employers

The EEOC also issued a set of Questions & Answers about the guidance.