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EEOC Publishes New Enforcement Guidance Regarding Employers’ Use of Criminal Background Checks for Job Candidates and Employees

May 2, 2012
Labor and Employment Alert

Recently, the Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance memorandum regarding employers screening out job candidates and employees on the basis of conviction records. Certain employer background check practices may give rise to claims of discrimination under Title VII of the Civil Rights Act of 1964 or similar state laws. The EEOC’s guidance mainly codifies existing case law and prior EEOC positions on the issue, but also suggests certain “best practices” for employers to avoid claims of discrimination.

The EEOC recommends against implementing a uniform rule that automatically excludes anyone with a conviction. Instead, employers should evaluate the following factors: (1) “the nature and gravity of the offense or conduct,” (2) “the time that has passed since the offense or conduct and/or completion of the sentence,” and (3) “the nature of the job held or sought.” The EEOC also recommends that affected individuals be given an opportunity to explain their personal circumstances and submit additional information that may be important to determining whether they should be hired, retained, or promoted despite a conviction.

The EEOC’s memorandum strongly advises against the use of arrest records to disqualify job candidates or employees, as opposed to conviction records, and also addresses employers’ compliance with criminal background checks that are required under federal, state, and local laws for certain jobs and/or industries. In fact, several states prohibit employment actions based on an arrest record. A copy of the full Enforcement Guidance memorandum may be found at the following link: EEOC Enforcement Guidance.

As a reminder, if an employer is going to take an adverse employment action against either a job candidate or an employee based on a conviction record, the employer also must comply with the numerous requirements under the federal Fair Credit Reporting Act. Moreover, care should be taken when an employer relies solely upon a summary of a conviction without reviewing, and understanding, the underlying court records. In light of the EEOC’s memorandum, employers are encouraged to review their employment application, and pertinent policies, to ensure they fully comply with the EEOC’s position.

Honigman will continue informing you about developments in the area of criminal background checks. If you have any questions regarding this new guidance from the EEOC, or would like assistance in developing a background check policy, please contact one of our Labor and Employment Department attorneys.