EEOC Guidance: Using an Individual's Criminal History in Hiring Decisions May Violate Anti-Discrimination Laws

On April 25, 2012, the EEOC issued a new Guidance regarding the use of arrest and conviction records in the hiring process. The EEOC’s goal in issuing the Guidance is to ensure that arrest and conviction records are not used in a discriminatory way by employers in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin.

The Guidance suggests that using an individual’s criminal history in making employment decisions may constitute a violation of Title VII. While an individual’s criminal history is not a protected basis under Title VII, the Guidance states that an individual’s criminal history may be used in a discriminatory way in violation of Title VII.

One way that an employer’s use of an individual’s arrest and conviction records may constitute a violation of Title VII is disparate treatment because of the individual’s race, national origin, or other protected basis. An example of disparate treatment discrimination is when an employer treats two individuals with the same criminal histories differently because of a protected basis such as race or national origin.

Another way that employer’s use of arrest and conviction records in making employment decisions may constitute a violation of Title VII is disparate impact on people of a particular race, national origin, or other protected basis. In a situation where people of a particular race, national origin, or other protected basis are being disparately impacted by an employer’s use of criminal histories, the employer may avoid liability under Title VII by proving that the use of criminal histories is “job related and consistent with business necessity.” The Guidance instructs employers may do this by considering the nature of the crime, the time elapsed, and the nature of the job in question. Then, the Guidance instructs employers to conduct assessments of individuals identified in the employer’s screen to decide whether the policy as applied is job related and consistent with business necessity.