The U.S. Equal Employment Opportunity Commission yesterday issued an updated enforcement guidance (found here) on the use of arrest and conviction records in employment decisions under Title VII.
While Title VII does not necessarily prohibit an employer from requiring applicants or employees to provide information about arrests and convictions, the EEOC has long taken a dim view of such requirements generally because arrest rates tend to be higher among minorities. Thus, because it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex, the agency’s position has been that making employment decisions based on arrest and/or conviction information may result in discrimination on the basis of a protected characteristic.
This latest guidance builds on longstanding guidance documents that the EEOC issued more than 20 years ago. It is predicated on and supported by federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The guidance consolidates previous EEOC policy statements 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 EEOC also issued a question-and-answer document about the new guidance, which can be found here.