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EEOC Releases Highly Anticipated Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions

May 9, 2012

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited guidance on the use and consideration of arrest and conviction records in employment decisions, which has been eagerly anticipated since the EEOC held its public hearing on July 26, 2011 regarding whether the use of such information violates Title VII of the Civil Rights Act of 1964 (“Title VII”). This new Guidance addresses the circumstances under which an employer may use the results of a criminal background investigation in the selection, retention and promotion of individuals.

The EEOC has recognized that over the past several years, employers have greater access to personal information about employees and prospective employees. Moreover, as part of the selection process, employers more frequently require prospective employees to consent to pre-employment criminal background investigations. Because individuals within certain protected categories under Title VII are more frequently arrested, convicted and incarcerated, an employer’s policy of using criminal background records to deny employment to an applicant has had a disparate impact on those groups. It should come as little surprise that the agency charged with enforcing federal employment discrimination laws has taken a closer look at the ever-increasing use of criminal background information by employers to exclude job applicants from consideration.

This new Guidance discusses those circumstances where an employer’s use of an individual’s criminal history in making employment decisions may violate Title VII. The EEOC’s Guidance also discusses the differences between arrest and conviction records, and establishes procedures for employers to implement when considering criminal record information in employment decisions. The EEOC’s Guidance states that a policy or practice requiring an across-the-board exclusion from all employment opportunities for an applicant with a criminal history may violate Title VII. Pursuant to the Guidance, employers that utilize criminal history in its employment decisions, must develop and implement a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

In addition, when an employer uses criminal history information as the basis for an adverse employment action, the employer must identify the essential job requirements, the actual circumstances under which the jobs are performed, and the specific offenses that may demonstrate an individual’s unfitness for performing that job. In fact, the Guidance directs that an employer justify an adverse employment decision based upon a criminal conviction by demonstrating that the criminal conduct is related to the job sought and consistent with business necessity under Title VII. Thus, employers are now required to conduct an individualized assessment of an applicant with a criminal record and must demonstrate whether excluding the applicant from consideration based upon a criminal conviction is job-related. According to the Guidance, the factors that every employer must consider before disqualifying an individual for employment, retention or promotion include: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job held or sought.

Through the Guidance, the EEOC has made clear that employers that conduct criminal background checks on its applicants and employees must reexamine its policies and practices to ensure that it is not improperly excluding individuals based upon a past criminal conviction.
The full text of the EEOC Guidance may be found on the EEOC’s website at:

For more information, please contact:

Catherine P. Wells, Member of the Firm
(973) 530-2051 |

Margaret O’Rourke Wood, Member of the Firm
(973) 530-2063 |

Denise J. Pipersburgh, Associate
(973) 530-2090 |