The Equal Employment Opportunity Commission has issued its long-anticipated Enforcement Guidance on employer use of arrest and conviction records in making employment decisions. The guidance, released on April 25, 2012, is grounded on the premise that any employment practice that has a disparate impact upon a Title VII protected group is unlawful unless the practice is job related and consistent with business necessity.

In issuing the guidance, the EEOC cited concerns that employers use information obtained during criminal background checks to illegally discriminate against employees and job applicants in violation of Title VII of the Civil Rights Act of 1964. Key aspects of the lengthy guidance are discussed below.

The guidance’s introduction references national data supporting a conclusion that criminal record exclusions have a disparate impact on individuals, particularly African Americans and Hispanics, on the basis of race and national origin. Unlawful disparate impact occurs when an employer enforces a policy or practice that is not job related and consistent with business necessity and that affects a protected group more than the group as a whole.

In the EEOC’s view, to survive a potential disparate impact claim an employer must show that its criminal-record policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. The EEOC identifies two scenarios in which it believes employers will consistently meet the “job-related and consistent with business necessity” standard:

  • Where the employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible)
  • Where the employer 1) develops a targeted screen considering at least the nature of the crime, the time elapsed since the conviction or release from incarceration, and the nature of the job, and 2) provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity

The individualized assessment may include consideration of such evidence as possible inaccuracy in the criminal record, circumstances surrounding the offense, the age at the time of conviction or release, evidence of performance of the same type of work post-conviction with no further criminal incidents, rehabilitation efforts including education and training, character references, and whether the individual is bonded.

Also discussed in the guidance is the difference between arrests and convictions. Because an arrest does not establish that criminal conduct has occurred, an adverse employment action based on an arrest alone is not job related and consistent with business necessity. An employer may, however, make an employment decision based on the conduct underlying the arrest if, after a factual investigation, the employer determines that the conduct renders the individual unfit for the position in question.

By contrast, a record of a conviction will usually serve as sufficient evidence that a person engaged in criminal conduct. The EEOC recommends as a best practice, but does not require, that employers refrain from asking about convictions on job applications and that, if and when employers make such inquiries, the inquiries be limited to convictions for which an exclusion would be job related for the position in question and consistent with business necessity.

Compliance with other federal laws or regulations is a defense to a charge of discrimination under Title VII. For example, screening out an applicant who, due to a criminal record, is unable to obtain federal security clearance for a position requiring it would not be unlawful. State and local laws or regulations, however, are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.

Employers should review their policies and procedures to ensure compliance with the new guidance. If you have any questions on the implications for your business, please contact Patricia A. Smith at 856.873.5521 or, or the member of the Labor and Employment Group with whom you work.

Copyright © 2012 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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