EEOC Updates Guidance On Using Criminal Records In Hiring Decisions

On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) announced updated guidelines regarding the ability of employers to consider criminal background checks when making hiring decisions. Enforcement Guidance No. 915.0021 advises employers on how to use criminal background checks without violating existing laws when looking at job applicants. Some groups view the EEOC's updated guidelines as merely codifying existing federal statutory and case law regarding employment discrimination. Others view the updated guidelines as controversial and are concerned about the impact these guidelines will have on their workplace environments. In this article, we examine Enforcement Guidance No. 915.002 and its implications for employers.

Background

Statistical and Social Context of Enforcement Guidance No. 915.002

The EEOC issued the updated Enforcement Guidance No. 915.002 in order to specifically address the way that racial minorities are potentially discriminated against in terms of hiring policies. The new Guidance replaces two previous EEOC policies, a 1987 EEOC Policy Statement regarding Conviction Records and a 1990 Policy Guidance on the Consideration of Arrest Records. The updated guidelines cite statistics that show that Latino and African-American men have higher rates of arrest and incarceration compared to their white peers. If current incarceration rates do not change, one in six Latino men will serve time in prison during their lifetime, compared to one in 17 white men and one in three African- American men. In 2010, African-Americans made up 14% of the general population, but constituted 28% of all arrests. People of color were more likely than Caucasians to be arrested, convicted, or sentenced for drug offenses despite the fact that both populations have similar levels of drug use according to the guidance.

Legal Issues

The relationship between these statistics and the updated guidelines becomes clearer when examined in the context of the multiple theories of employment discrimination established by the Supreme Court. According to the court's holding in Griggs v. Duke Power Co.2, there are two important theories of employment discrimination: (1) disparate treatment and (2) disparate impact.

Disparate treatment means the intentional discrimination against protected groups, for example, if an employer required only African- Americans to undergo a criminal background check, but did not ask white job applicants to...