EEOC Issues New Enforcement Guidance On The Use Of Criminal Background Checks

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new Enforcement Guidance with respect to an employer's consideration ofarrest and conviction records in employment decisions. The guidance discusses employer practices that the EEOC considers permissible and impermissible based on its interpretation of Title VII of the Civil Rights Act of 1964. It bars the use of arrest records alone in making adverse employment decisions. The guidance also requires that any policy excluding individuals with past convictions from consideration for a position be narrowly-tailored to both the position in question and business necessity.

Best practices. The EEOC suggests that employers eliminate policies or practices that exclude individuals from employment based on their having any criminal record whatsoever, as this will never be consistent with business necessity. Additionally, employers using criminal background information in employment decisions should create a narrowly-tailored written policy that is guided by the factors detailed below – the nature and gravity of the offense, time passed since the offense, and the nature of the job held or sought. It also suggests that employers limit criminal history inquiries to records that would require exclusion from the position at issue. Employers should also keep in mind that when conducting a background check on applicants or employees, they must comply with the Fair Credit Reporting Act (FCRA).

While the EEOC's guidance is not binding law, it is the standard the EEOC will use when evaluating discrimination complaints based on the use of criminal history information in employment decisions.

New York employers should keep in mind that New York state law, discussed at the end of this Alert, includes a prohibition on any inquiry into or use of arrest records that did not lead to a conviction. It also limits the use of conviction records in employment decisions. Failure to follow New York law is a separate source of potential liability, as employers can be sued under both state and federal law for discriminatory use of criminal history information.

Analysis of the EEOC's Guidance

Title VII bars discrimination on the basis of race, national origin, sex, and religion. The guidance distinguishes between two types of Title VII violations: disparate treatment and disparate impact.

Disparate treatment. In the criminal history context, a disparate treatment violation occurs when an employer treats...