EEOC Updates Enforcement Guidance on Arrest/Conviction Records

Today, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance document on employer use of arrest and conviction records in employment decisions under federal law (Title VII ).

The EEOC voted 4-1 to approve the guidance document. The EEOC also issued a Question-and-Answer document about the new enforcement guidance.

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. For example:

• “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”
• “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”

The guidance also discusses:

• Differences between the treatment of arrest records and conviction records; 
• 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 previously issued three policy statements on this issue and has investigated and decided Title VII charges from individuals challenging the discriminatory use of criminal history information since at least 1969.

The EEOC also issued a press release concerning the updated guidance document.  

HRCalifornia will provide updated information regarding application of this guidance for California employers.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel