EEOC Advisory Guidance Offers Insight On The Use Of Arrest And Conviction Records

In July 2011, the Equal Employment Opportunity Commission (EEOC) held its latest meeting on the topic of protections for job applicants with arrest and conviction records under Title VII of the Civil Rights Act of 1964. The full Commission heard remarks from the panelists about "Best Practices From Employers" and related topics.1 Although the EEOC clearly has renewed its focus on the hiring process, including Title VII protections for ex-offenders, many employers were disappointed that the EEOC did not reveal at the meeting whether it will update its 1987 Policy Statement on the Issue of Conviction Records under Title VII.2 Notably, one of the Commissioners referenced at the hearing the U.S. Court of Appeals for the Third Circuit's decision in El v. South Eastern Pennsylvania Transportation Authority (SEPTA),3 in which the court expressly criticized the 1987 Policy Statement as "vague."

Now, the first post-July 2011 meeting advisory opinion letter from the EEOC's Office of Legal Counsel4 provides some insight into the Commission's current enforcement position. The non-binding letter suggests the Commission: (1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.

Notably, with respect to the disqualification period for prior convictions, the advisory letter recommended only asking job applicants to disclose convictions "that have taken place in the past seven years." The letter offers no explanation for why the cutoff should be seven years and, somewhat curiously, makes no direct reference to the Third Circuit's opinion in El. Thus, the letter provides some insight into the Commission's current enforcement position, but is far from the type of persuasive authority that employers who must balance Title VII and negligent hiring risks have been awaiting for several years.

Summary of the Advisory Opinion Letter

The advisory opinion letter was written in response to a request for comments from the Peace Corps about its proposed application for volunteer positions with its international service programs. The following provisions in the application were of concern to the EEOC staff...