EEOC Issues Guidance on Background Checks

The U.S. Equal Employment Opportunity Commission issued significant new guidance on April 25, 2012, addressing the use of criminal background checks by employers in making employment decisions. In a 55-page document entitled, "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964," (1.usa.gov/KasaRo) the EEOC warns employers to be careful when utilizing criminal background checks. The guidance includes a number of examples and is supplemented by a separate list of Questions and Answers (1.usa.gov/Lkp6yM).

Two excerpts from the report are particularly noteworthy:

• "An employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended."
• "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."