April 27, 2012

Use of Criminal Records in Employment Decision-making Clarified by EEOC

Posted in Arrest records, Background Checking, Conviction Records, Criminal History, Hiring and Recruiting tagged , , , , , at 8:58 am by Tom Jacobson

The Equal Employment Opportunity Commission on April 25, 2012 issued a new Enforcement Guidance, titled Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

While Title VII does not expressly prohibit the use of such records when making employment decisions, the use of those records will be unlawful discrimination if it disproportionately impacts classes of individuals who are protected by Title VII. One example of this is a recent case where Pepsi agreed to pay $3.13 million to settle a case challenging its former background checking policy (see Pepsi Popped for 3.1M in Background Check Case).

According to EEOC Chair Jacqueline A. Berrien, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”  To that end, the EEOC reports that the Enforcement Guidance addresses:

  • How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;
  • Federal court decisions analyzing Title VII as applied to criminal record exclusions;
  • The differences between the treatment of arrest records and conviction records;
  • The applicability of disparate treatment and disparate impact analysis under Title VII;
  • Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and
  • Best practices for employers.

What you need to know:  The use of arrest and conviction records is technically not a violation of Title VII.  However, Title VII will be violated if an employer’s practices disproportionately impact protected classes of individuals, and other laws may restrict or regulate an employer’s use of such records.  Therefore, before arrest and conviction records are used, employers must thoroughly understand the proper way of using them; reviewing the EEOC’s new Enforcement Guidance will be a step in the right direction.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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