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EEOC Releases New Guidance on Criminal Background Checks

On April 25, 2012, the Equal Opportunity Employment Commission (“EEOC” or “Commission”) published its Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Guidance”). The Guidance consolidates and supersedes the Commission’s 1987 and 1990 policy statements on this issue and is intended to limit employers’ options to use criminal history information in the employment process. A 2010 survey from the Society for Human Resource Management indicates that 73 percent of employers conduct criminal background checks on all candidates and another 19 percent do so for selected positions.

While employers conduct criminal background checks for valid reasons – to keep customers and other employees safe, to weed out dishonest or violent workers and to prevent negligent hiring claims – the EEOC believes that the use of criminal history information has the potential to violate Title VII in two ways. The first concern is that some employers may require criminal history information only from certain applicants based on their protected class status or treat applicants with the same criminal records differently based on protected class status (disparate treatment). The second concern is that even if an employer applies its criminal record exclusion uniformly, the exclusion may operate to disproportionately exclude applicants of a particular race or national origin (disparate impact). In such cases, the Commission indicates that the employer must show the exclusion is “job related and consistent with business necessity” to avoid the exclusion being found unlawful under Title VII.

A substantial portion of the Guidance addresses the standard for defending a criminal record screening policy as job related and consistent with business necessity. The Guidance distinguishes between arrest records and conviction records on the basis that arrest records have limited value as they do not establish that the underlying criminal conduct actually occurred. Conviction records on the other hand, “will usually serve as sufficient evidence that a person engaged in a particular conduct, given the procedural safeguards associated with trials and guilty pleas.” Care, however, must be taken to assure there is not an error in the record or that the record was changed.

Even when using verified conviction records, the EEOC states that “an employer needs to show that the [criminal conviction screening] policy operates to effectively link specific criminal conduct and its dangers with the risk inherent in the duties of a particular position.” To that end, the EEOC recommends that employers conduct “individual assessments” before disqualifying an applicant based on his or her criminal background. The Guidance sets forth a number of factors that employers should review when making an individualized assessment, including: (1) the facts or circumstances surrounding the offense or conduct; (2) the number of offenses for which the individual was convicted; (3) age at the time of conviction or release from prison; (4) evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct; (5) the length and consistency of employment history before and after the offense or conduct; (6) rehabilitation efforts, e.g., education and training; (7) employment or character references and any other information regarding fitness for the particular position; and (8) whether the individual is bonded under a federal, state, or local bonding program. Based on the Guidance and the “best practices” identified by the EEOC described below, it is recommended that employers:

Review their criminal background screening practices and policies and eliminate policies or practices that exclude people from employment based on any criminal record

Adjust their current screening policies as necessary if current policies are not justified as job related and consistent with business necessity;

Provide training to supervisors and job interviewers on the Guidance; and

Consider developing and implementing a program of individual assessments to be used before excluding any applicant from employment due to his or her criminal background.

Answers to Your (Likely) Questions
1. Is the Guidance the “law”?
No. Courts are not bound by the Guidance nor are they required to defer to it. However, the EEOC will rely on the Guidance in its administrative actions.

2. Can employers still ask about criminal records in the hiring process? Yes. The Guidance recommends that employers not ask about convictions on job applications, but the practice is not prohibited.

3. Are employers prohibited from considering criminal records? No.

4. Are employers required to use an “individual assessment” prior to excluding an applicant? No. However, it is clear that failing to conduct an individual assessment will impact the EEOC in its administrative decision –in determining if the employer’s overall actions have resulted in disparate impact discrimination.

5. Did the Commission suggest “best practices” in this area? Yes. Section VIII of the Guidance provides the following examples:

Eliminate policies or practices that exclude people from employment based on any criminal record.

Train managers, hiring officials and decision makers about Title VII and its prohibition on employment discrimination.

Developing a Policy
Identify essential job requirements and the actual circumstances under which the jobs are performed.

Determine the specific offences that may demonstrate unfitness for performing such jobs.

Determine the duration of exclusions for criminal conduct based on all available evidence.

Include an individualized assessment.

Record the justification for the policy and procedures.

Note and keep a record of consultations and research considered in crafting the policy and procedures.

Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records
When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in questions and consistent with business necessity.

Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.