Yesterday afternoon, the EEOC announced its long awaited,
and, by employers, long dreaded, Enforcement
Guidance on the Consideration of Arrest and Conviction Records in Employment
Decisions under Title VII (along with a short and sweet Q&A).
The Guidance is not nearly as bad for employers as it
could have been. Anyone who feared that the agency would over-reach and
proclaim that pre-employment criminal background checks per se violate Title
VII will be greatly relieved. As SHRM points out:
SHRM is pleased that the guidance does not appear to
impose a one-size-fits-all set of rules on employers and seems to take into
consideration that every employer will have different needs and concerns in the
use of criminal background checks in hiring.
Nevertheless, the Guidance is not perfect. For example,
"as a best practice, and consistent with applicable laws," the EEOC "recommends
that employers not ask about convictions on job applications." While I
certainly appreciate the EEOC's recommendation, I'm not sure what "applicable
laws" it references. This attempt to codify "ban the box" is one clear example where the EEOC is
Perhaps the most controversial piece of the new Guidance
is the EEOC's belief that to survive a potential disparate impact claim,
employers must develop a targeted screen that considers at least the
nature of the crime, the time elapsed, and the nature of the job, and then must
provide an opportunity for an individualized assessment to determine if
the policy as applied is job related and consistent with business necessity.
In engaging in this individualized assessment, the EEOC
directs employers to consider the following factors:
Individualized assessment generally means that an
employer informs the individual that he may be excluded because of past
criminal conduct; provides an opportunity to the individual to demonstrate that
the exclusion does not properly apply to him; and considers whether the
individual's additional information shows that the policy as applied is not job
related and consistent with business necessity.
The individual's showing may include information that he
was not correctly identified in the criminal record, or that the record is
Other relevant individualized evidence for employers to
I'm not aware of any requirement under Title VII that
requires an individualized assessment in all circumstances. In the EEOC's
opinion, however, forgoing a screen that includes the individualized assessment
will make it difficult, if not impossible, for an employer to justify a
criminal background check as job related and consistent with business
necessity. Yet, applying this individualized assessment for all applicants will
impose a heavy burden on employers. And, the greater an employer's attrition
and hiring needs, the heavier that burden will become.
The EEOC concludes by suggesting some best practices for
employers who consider criminal record information when making employment
There is a lot to digest in this comprehensive policy
guidance. For example, the EEOC discusses the differences between arrest
records and conviction records, and provides specific examples of exclusions
that will and will not fall under the umbrella of job related and consistent
with business necessity.
This Enforcement Guidance is required reading for any
business that takes arrest or conviction records into consideration in any
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The EEOC's new guidelines will have a significant impact on employers. Pre-employ attorneys and compliance experts are working to provide answers to your questions about EEOC guidance changes. Visit http://portal.pre-employ.com/eeoc-report.php to get Pre-Employ's findings, analysis and direction on establishing best hiring practices based on the new EEOC Enforcement Guidance.