by Heather Egan Sussman, Stephen D. Erf and Sabrina Dunlap
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance for employers on using arrest and conviction records when making employment decisions. The guidance, which is available here, passed by a 4-1 vote of EEOC commissioners, and consolidates and supersedes the EEOC’s prior policies on this topic.
The agency decided to re-evaluate its policy on the use of criminal background checks in employment decisions after the U.S. Court of Appeals for the Third Circuit suggested to the EEOC in a 2007 case that the agency provide analysis and updated research on the use of background checks in employment. Since 2007 the EEOC has examined social science and criminological research, as well as court decisions and state and federal laws, to assess the effect of the use of criminal records and background checks in employment decisions. Of particular concern to the EEOC are the arrest and incarceration rates for certain minority groups, and the potential that the use of criminal records and background checks in employment decisions could have a disparate impact on people in those groups.
While the new guidance does not change the EEOC’s fundamental position on applying principles of Title VII of the Civil Rights Act (the federal law prohibiting employment discrimination based on race, color, religion, sex, national origin, etc.) to an employer’s use of criminal records in the workplace, it does offer more in-depth analysis of disparate treatment and disparate impact, and provides employers with clearer rules on the proper use of criminal records and background checks. In particular, the guidance explains in detail how employers can establish a defense to claims of disparate impact by showing that employment decisions based on criminal records or background checks are job-related and consistent with business necessity.
In addition to the guidance, the EEOC issued a Q&A, available here. (Note that certain states have further restrictions regarding how such information is gathered and used.) Please stay tuned for a more detailed discussion of the guidance and its implications for employers.