EEOC Limits Use of Criminal History in Employment Decisions
To Read the Entire EEOC Enforcement Guidance, visit
The Equal Employment Opportunity Commission (EEOC) has issued guidance to employers regarding the consideration and use of conviction records in making employment decisions. According to the EEOC, the guidance is designed to “consolidate and update” the use of arrest or conviction records under Title VII of the Civil Rights Act of 1964.
According to the Guidance, “the fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
This provision has been used in our practice to restore employment to a person who has been accused, but not convicted, of a criminal offense.
The Guidance goes on to compare disparate treatment and disparate impact.
A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).
National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
Properly applied these policies should result in considerable relief to persons whose criminal histories have impeded the search to obtain and keep good employment.