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US EEOC Issues Enforcement Guidance on Employer Use of Arrest and Conviction Records

April 27, 2012

The U.S. Equal Employment Opportunity Commission (EEOC) on Wednesday issued an update titled “Enforcement Guidance on Employer Use of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.” EEOC also issued a question and answer document about the report.


According to EEOC Chair Jacqueline A. Berrien, the report is meant to clarify and update the EEOC’s long standing policy concerns on the use of arrest conviction records in employment in order to assist job seekers, employees, and employers. The report also builds on longstanding guidance documents that the EEOC issued over twenty years ago.

This update is a result of a series of EEOC meetings on the subject that date back to 2008. Since that time the EEOC has been investigating the issue further and working to determine whether or not additional guidance is necessary on the subject based on advancements in technology that have made criminal history information much more accessible to employers. EEOC received and reviewed approximately 300 public comments that responded to topics discussed during their July 2011 meeting on this issue with organizations like the NAACP, U.S. Chamber of Commerce, Society for Human Resources Management, Leadership Conference on Civil and Human Rights, American Insurance Association, the Retail Industry Leaders Association, Public Defender Service for the District of Columbia, National Association of Professional Background Screeners, and the D.C. Prisoners’ Project.

What the guidance is attempting to do is help employers understand situations where applicants with the same qualifications and criminal records are treated differently because of their race or national origin in violation of Title VII, and to make sure employers know that instances where this treatment occurs could be viewed by EEOC as unlawful.  EEOC guidelines also make recommendations to employers on how they can comply with the law in their hiring practices as it relates to an employer’s use of criminal history.

Further, it seems that the EEOC is also attempting to alert employers to the more in-depth relationship between discrimination based on race, color, religion, sex or national origin and the use of criminal conviction history in hiring practices. Through EEOC's meetings, investigation and public comment received on this issue, EEOC developed this guidance to make employers aware that even where they apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin.  According to the guidance, if the employer does not show that such exclusion is “job related and consistent with business necessity” for the position in question, then the exclusion is unlawful under Title VII.

While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex.

Among other topics, the guidance discusses:

  • 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.

More information about the EEOC is available on its website.

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