In 2012, the Equal Employment Opportunity Commission updated its guidance regarding the use of arrest or conviction records when making employment decisions. In some instances, using the records may run afoul of the Civil Rights Act’s prohibition against employment discrimination. The marked increase in the number of people with criminal records in the working-age population, and the disproportionate arrest and incarceration rates for African-American and Hispanic men (specifically, two to three times that of the general population), prompted the additional guidance.

First and foremost, the use of criminal histories must be job related and consistent with business necessity. In determining whether a criminal history meets that criteria, the guidance emphasizes the important differences between arrest records and conviction records. A criminal conviction is generally sufficient evidence that the individual engaged in certain conduct. If the conduct is related to the job and consistent with business necessity, excluding the applicant is appropriate. In an arrest record situation, however, the fact of an arrest does not establish that criminal conduct has occurred. In other words, just because applicant was arrested does not mean that she committed a crime. Therefore, basing a hiring or retention decision on the existence of an arrest may constitute discrimination. At the same time, if an employer is making the decision based on the conduct underlying the arrest because the conduct makes the individual unfit for the position, that decision may not be discriminatory.

To help employers adhere to the guidance, the EEOC provides the following best practices for using criminal record information in employment decisions:

• Eliminate policies or practices that exclude people from employment based on any criminal record, and train decision makers about employment discrimination.

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

• Identify essential job requirements and the actual circumstances under which the jobs are performed.

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

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question 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.

For questions or additional assistance regarding the EEOC’s guidance, please contact Wright Beamer.