Labor & Employment Alert: Background Checks: EEOC Issues New Guidance on Use of Arrest and Conviction Records

By Matthew Tarasevich
May 1, 2012

Many employers routinely run background checks on applicants and employees. On April 26, 2012, the Equal Employment Opportunity Commission issued new guidelines on how employers may use arrest and conviction records when considering applicants for employment. The new guidelines address the EEOC’s long-standing concerns about the potential discriminatory use of criminal conviction information that might, under certain circumstances, result in employer liability under Title VII of the Civil Rights Act of 1964, which protects individuals in “protected categories” — such as race, age and sex — from employment discrimination.

Under the new EEOC guidelines, an employer’s use of arrest and conviction data must be “narrowly tailored” to meet the qualifications of the position. The EEOC cautions that criminal record information obtained during background checks should not be used to disqualify or screen out applicants unless the conviction is job related. Employers should instead conduct an “individualized assessment” to determine if such information would disqualify an applicant, which includes permitting the applicant an opportunity to explain the circumstances of the conviction. This new EEOC guidance does not mean that employers cannot consider criminal conviction information in making a hiring decision. For example, the employer may have a policy of not hiring persons with motor vehicle convictions for driving jobs. On the other hand, those same motor vehicle convictions should probably not be used to disqualify that person from a desk job, as they are not job related.

Additionally, the EEOC, as it has in the past, takes a dim view of using arrests, as opposed to convictions, as disqualifying criteria. Some studies show that certain populations are arrested (but not necessarily convicted) at higher rates, suggesting possible underlying discrimination. Under the guidelines, arrest data “standing alone” should not be used to deny an employment opportunity. However, in certain circumstances, the conduct underlying an arrest may be sufficient to deny the opportunity. For example, considering an arrest for child abuse, which violates a summer camp’s policy against conduct which is harmful to the health and safety of children, would likely not be a violation of Title VII.

The new EEOC guidelines also provide that state and local laws which prohibit the employment of certain persons with convictions do not necessarily preempt the guidelines. Accordingly, employers who normally rely on state and local laws to exclude persons with convictions for certain positions also must show that any policy against hiring persons based on a criminal record is both job related and a business necessity, and they should conduct the individualized assessment.

Practical Considerations

In light of the new EEOC guidelines, employers who consider criminal history data during the application process should:

• Review any handbooks, policies and job descriptions which tend to screen out applicants based on arrest or criminal conviction information.

• Revise any applicable policies to ensure that the use of criminal history information is “narrowly tailored” to each position, and is job related.

• Review hiring and application processes to ensure that applicants are not screened out in a manner which might be in violation of Title VII.

• Adopt policies and procedures that allow for an individualized assessment of any applicant for whom criminal conviction information and arrest records are considered.

If you have questions regarding the new EEOC guidelines, please contact Matthew Tarasevich (207-228-7158, mtarasevich@bernsteinshur.com).