EEOC Renders Guidance on Use of Arrest and Conviction Records in Employment Decisions

The U.S. Equal Employment Opportunity Commission (the “Commission”), the office which enforces Title VII of the Civil Rights Act of 1964 (“Title VII”), has released guidance this year on the consideration of arrest and conviction records in employment decisions.1 Title VII, as most employers are aware, prohibits employment discrimination based upon race, color, religion, sex, or national origin.

In some instances, an employer’s use of an individual’s arrest record or criminal history in making employment decisions may constitute employment discrimination under Title VII. There are two main ways this can occur. First, if an employer treats criminal information differently for different applicants or employees based upon race, color, religion, sex, or national origin, discrimination may be found based upon disparate treatment. Second, even a neutral employer policy may violate Title VII if it disproportionately impacts individuals protected by Title VII and may be illegal if not related and consistent with a business necessity.

The first means of discrimination can be easily avoided by treating all applicants for similar positions similarly, regardless of race, color, religion, sex, or national origin. The second potential violation can be more difficult to avoid because employers may not be able to readily see the disparate impact of their policies.

The Commission has determined, with respect to potential disparate impacts, that employers can typically avail themselves to the “job related and consistent with business necessity” defense in two ways. First, an employer can confirm the criminal conduct exclusion for a given position based upon the Uniform Guidelines on Employee Selection Procedures, when data or analysis about criminal conduct in relation to subsequent work performance exists. Second, the employer may develop targeted screening that takes into account the nature of the crime, the time elapsed, and the nature of the job. In addition, the employer should provide an opportunity for individualized assessment for those individuals identified by the screen to establish whether the policy, as applied, is both job related and consistent with business necessity.

While compliance with federal laws and/or regulations that conflict with Title VII is a defense to a discrimination charge, state and local laws that conflict with Title VII are preempted.

Angela L. Gidley (former associate)

This message is not an evaluation of the requirements or exemptions relating to any particular business and is not exhaustive of the requirements under the law. If you are unsure of whether your employment policies adhere to or conflict with the guidance established by the U.S. Equal Employment Opportunity Commission and Title VII of the Civil Rights Act of 1964, please contact legal counsel.

1 Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, U.S. Equal Employment Opportunity Commission, Guidance Document No. 915.002 (April 25, 2012).