What You Need to Know About the New EEOC Guidance on Arrest or Conviction Records

The Equal Employment Opportunity Commission (EEOC) recently released a new Guidance in reaction to a federal appeals case on the topic of using arrest or conviction records to screen employees. This new federal ruling gave little weight to the EEOC’s prior statements on the subject of using background checks to screen employees in a nondiscriminatory manner. The Guidance is effective immediately and is “designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff,” according to the EEOC website.

The Guidance does not prohibit employers from using criminal background checks, but looks to ensure that such information is not used in a discriminatory way. There are various scenarios where an employer could use arrest or conviction records in a discriminatory way. Any possible scenario would involve the Title VII of the Civil Rights Act of 1964, which prohibits employers from treating job applicants or employees with the same criminal records differently because of their race, national origin, or another protected characteristic. According to the EEOC, “[Title VII] means that, if criminal record exclusions operate to disproportionately exclude people of a particular race or national origin, the employer has to show that the exclusions are  ‘job related and consistent with business necessity.’”

Staying compliant with the new EEOC Guidance may include making some strategic changes to the way you screen potential employees. Some best practices for compliance with the new EEOC Guidance include:

General

• Eliminate policies or practices that exclude people from employment based on any criminal record
• Train managers, hiring officials and decision makers on the new Guidance

Develop a Policy

• Develop a narrowly tailored written policy and sound procedures for screening for criminal records
• Identify essential job requirements and the actual circumstances under which the jobs are performed
• Determine the specific offenses that may demonstrate unfitness for performing such jobs
• Identify the criminal offenses based on all available evidence
• Determine the duration of exclusions for criminal conduct based on all available research and evidence
• Include an individualized assessment
• Record the justification for the policy and procedures
• Document and keep a record of consultation and research considered in crafting the policy and procedures
• Train hiring managers, hiring officials and other decision makers on how to implement the policy and procedures consistent with Title VII

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity

Confidentiality

• Keep information about the criminal records of applicants and employees confidential – only use it for the purposes for which it was intended

The EEOC took great care when creating this new Guidance to incorporate social science and criminological research, court decisions, and information about various state and federal laws to help employers better assess the impact of using criminal records in employment decisions. Additionally, the EEOC reviewed statements from various organizations including the NAACP, the U.S. Chamber of Commerce and the Society for Human Resources Management (SHRM).

How do you use background checks to screen potential employees in your organization?