On April 25, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") voted 4-1 to approve an updated Enforcement Guidance titled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964." The EEOC also issued a related Questions and Answers document. The newly issued guidance expands on Title VII guidance the EEOC issued more than 20 years ago.
According to the EEOC, the new guidance is predicated on and supported by federal court precedent concerning the application of Title VII to employer consideration of a job applicant's or employee's criminal history and incorporates judicial decisions issued since the passage of the Civil Rights Act of 1991. The guidance also updates relevant data and consolidates previous EEOC policy statements on the use of criminal history information. The EEOC includes in the guidance examples of steps employers can take to comply with Title VII when making employment decisions based on criminal history. The guidance concludes with recommended "best practices" for employers.
The enforcement guidance generally discusses liability based on disparate treatment, but it focuses on disparate impact liability. According to national criminal history data on which the EEOC relied in drafting the guidance, criminal background-checking policies have a disproportionate effect on racial and ethnic minorities. The national data provides the EEOC with a basis for investigating Title VII disparate impact charges challenging adverse actions based on criminal records.
The enforcement guidance:
Though the enforcement guidance is not binding on employers, it is nevertheless important for employers to examine their policies regarding background checks and applicants' or employees' criminal history because the EEOC will consider the document when enforcing Title VII. Further, although the guidance does not prohibit employers from asking about convictions on job applications or require that employers provide an "individualized assessment" for candidates screened out by a background check, the EEOC will look to see whether employers have these policies in place when investigating a charge challenging an adverse action based on criminal history. When reviewing their policies, employers must also consider risks beyond noncompliance with Title VII, such as liability based on negligent hiring.
If you have any questions associated with this guidance, please contact a member of the firm's Labor and Employment group.