EEOC Issues New Guidance On Criminal Background Checks

On April 25, 2012, the Equal Employment Opportunity Commission ("EEOC" or "Commission") issued new Enforcement Guidance on criminal background checks, after the Commissioners approved it in a 4-1 vote. The EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. (the "Guidance") consolidates and supersedes the Commission's 1987 and 1990 policy statements on the subject matter as well as the discussion of arrests and convictions in the agency's Race & Color Discrimination Compliance Manual Chapter.

The EEOC stated that guidance was needed to address a 2007 decision from the U.S. Court of Appeals for the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007), that criticized past Guidance. It also said new Guidance was needed to address the rise in conviction rates generally, and the disproportionately high conviction rates of African American and Hispanic men. Finally, it said the new Guidance was needed to address the increasing availability and ease with which criminal background checks can be conducted and the widespread use of such checks by employers.

The Guidance describes the circumstances under which use of arrest and conviction records in hiring may run afoul of Title VII of the Civil Rights Act of 1964 ("Title VII") under either a disparate treatment of disparate impact theory. It continues to endorse employer use of the factors set out in the Green v. Missouri Pacific Railroad Company, 523 F.2d 1158, 1160 (8th Cir. 1975), when making employment decisions based on conviction record. The Green factors are:

The nature or gravity of the offense or conduct; The time elapsed since the offense, conviction; and/or completion of the sentence; and The nature of the job sought or held. In the Guidance, the EEOC also discusses two circumstances in which an employer's criminal conviction policy will "consistently meet" Title VII's "job related and consistent with business necessity" defense. According to the Commission, employers who are able to validate their use of background screening policies and practices or to develop a targeted screen using the Green factors and provide employees with criminal records an opportunity for an "individualized assessment" will meet the defense. Nonetheless, the Guidance acknowledges that Title VII does not necessarily require...