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NAW Legal Advisory

EEOC Issues Revised Enforcement Guidance on Use of Criminal Records in Employment Decisions

Updated May 2012

By a 4-1 vote, the Equal Employment Opportunity Commission (EEOC) approved the issuance of a revised enforcement guidance document concerning an employer’s use of criminal arrest and conviction records in making hiring and other employment decisions, and whether such use may violate Title VII of the Civil Rights Act. While an EEOC guidance document does not have the force and effect of law and is not binding on the courts, it does indicate the agency’s intentions as to enforcement of Title VII. The document can be accessed at:
http://www.eeoc.gov/eeoc/newsroom/release/4-25-12.cfm

Issued on April 25, 2012, the guidance reaffirms that the employer may not intentionally discriminate, on the basis of race or national origin, against individuals with similar criminal histories. However, according to the new guidance, an employer’s racially/ethnically neutral policy (e.g., a “criminal record exclusion” that excludes all applicants from employment based on certain criminal convictions) will be deemed by the EEOC to have a disparate impact on race and national origin, and thus be subject to EEOC investigation. To defend such a policy, the employer will need to establish that the policy is “job related and consistent with business necessity.”

According to the EEOC guidance, an employer will be deemed to meet this defense: (1) when the employer validates its policy using the EEOC’s Uniform Guidelines on Employee Selection Procedures (see 29 CFR Part 1607); or (2) when the employer develops a targeted screen that considers at a minimum the nature of the crime, the time elapsed since its commission, and the nature of the job for which the applicant is applying.

An employer may not be sued under Title VII when complying with (but not exceeding) a federal law or regulation that requires employers to consider an applicant’s criminal record. However, compliance with a state or local law or regulation requiring or permitting criminal background checks may nevertheless result in liability if in conflict with Title VII.

In voting against the new guidance, EEOC Commissioner Constance Barker strongly criticized the agency for its lack of transparency and for deciding to deny the American people any opportunity for public review and comment on the revised guidance document before voting for its approval. Commissioner Barker added, the EEOC “cannot use our authority to issue guidances to create new rights or protections that Title VII does not provide,” thereby usurping Congressional powers. Businesses can expect that the EEOC will be aggressively pursuing more investigations of employer use of criminal background checks when making employment decisions.