EEOC Updates Guidance on Employer Use of Arrest and Conviction Records

The U.S. Equal Employment Opportunity Commission (EEOC) has released updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).

Title VII and Criminal History Information
While Title VII does not prohibit an employer from requiring applicants or employees to provide criminal history information, there are two ways in which an employer’s use of such information may violate the law.

  • First, employers may not treat job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.
  • Second, employers may not use neutral employment practices to exclude individuals on the basis of criminal history if those practices disproportionately exclude people of a particular race or national origin, unless the employer can show that such exclusion is ‘job related and consistent with business necessity’ for the position in question.

Updated Enforcement Guidance Explains Key Issues
The Enforcement Guidance consolidates previous EEOC policy statements on this issue, and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee. Key topics addressed include:

  • How an employer’s use of criminal history in making employment decisions might violate the prohibition against employment discrimination under the law;
  • The differences between the treatment of arrest records and conviction records;
  • Compliance with other federal laws and regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

For More Information
To learn more about Title VII and the use of criminal history records in employment decisions, you may review the EEOC’s Questions and Answers about the Enforcement Guidance.

You might also be interested in reading: Are You Prepared for a COBRA Audit? or Requirement to Post New Employee Rights Notice Put on Hold

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