"How Should Employers Use Criminal History in Employment Now That The EEOC
Has Issued Enforcement Guidance". Seyfarth & Shaw, LLP provide strategy
and insight into EEOC Guidance.
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The U.S. Equal Employment Opportunity Commission (EEOC) released new guidance on lawful use of arrest and conviction records (criminal background checks) for employment purposes on April 25, 2012. The EEOC’s states its longstanding position has been that reliance on criminal history in making employment decisions may have disproportionate negative impact based on race and national origin in violation of Title VII of the Civil Rights Act of 1964.
The EEOC states that the guidance updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee. 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.
The guidance and related information are available at:
The U.S. Chamber of Commerce is urging the Obama administration to compel the Equal Employment Opportunity Commission to allow public input as the agency ponders issuing new enforcement guidance regarding employers’ use of criminal background and credit checks.
In an April 2 letter to Office of Management and Budget official Cass Sunstein, the chamber said EEOC’s potential guidances on both topics warrant OMB’s review for procedural and substantive reasons.