Use of Arrest and Conviction Records in Hiring

by Deborah Z Mark

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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) released new guidance regarding employers’ use of applicant and employee arrest and conviction information.  It will remain in effect until rescinded or superseded.

The new guidance includes information on how an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against discrimination under Title VII of the Civil Rights Act of 1964.  The new guidance states that an employer’s use of criminal history must be “job related and consistent with business necessity”.

2 Ways to Violate Title VII

The document explains the two ways in which an employer’s use of criminal history information may violate Title VII – disparate treatment discrimination and disparate impact discrimination.

Disparate treatment discrimination occurs when an employer treats job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Disparate impact discrimination occurs when an employer doesn’t show that an individual’s exclusion is job related and consistent with business necessity, which can disproportionately exclude people of a particular race or national origin.

The guidance advises employers to eliminate policies or practices that automatically exclude people from employment because of any criminal record.  It suggests that employers should “develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct”.

Consistent with business necessity

Employers should determine what offenses are unacceptable related to the job in question, and then include an individualized assessment in which the applicant or employee is informed that they may be excluded due to criminal conduct.  The employer should then give the person an opportunity to explain why the exclusion may not be “job related and consistent with business necessity”.

Exercise care and objectivity when addressing criminal history.  If you don’t, it could be considered…well…criminal.

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