EEOC Issues Guidance on Criminal Background Checks

The EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 in April of 2012, in light of significant recent rulings against employers related to criminal background checks. The guidance does not prohibit criminal background checks, but rather it requires a practice of “individualized assessment” in order for the employer to establish that they are not engaging in discriminatory behavior. “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.” The EEOC recommends to employers who consider criminal record information to develop a narrowly tailored policy and procedure for screening applicants and employees for criminal conduct. The policy should identify essential job requirements and the actual circumstances under which the jobs are performed; it should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and define the duration of exclusions for criminal conduct.

(Recent Developments authored By Elan Cameron)