Employers often have reason to be interested in an applicant’s or employee’s arrest and conviction records, but are understandably concerned about violating state and federal anti-discrimination laws. To assist employers in complying with federal law, the Equal Employment Opportunity Commission (EEOC) recently announced the release of an updated “Enforcement Guidance” on an employer’s use of arrest and conviction records in making employment decisions.
Most employers are aware that “Title VII” (Title VII of the Civil Rights Act of 1964) prohibits discrimination in employment based race, color, national origin, religion, or sex. That law does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration.
Nevertheless, criminal records can become a matter of employment discrimination if an employer treats applicants with the same criminal records differently because of their race, color, religion, sex, or national origin. Even if applied uniformly, criminal record exclusions may still disproportionately and unjustifiably exclude people of a particular race or national origin.
The Enforcement Guidance is designed to address such scenarios. Covered topics include:
- How an employer’s use of an individual’s criminal history in making employment decisions could violate federal employment discrimination law;
- Federal court decisions concerning criminal record exclusions under Title VII;
- The differences between the treatment of arrest records and conviction records;
- Examination of “disparate treatment” and “disparate impact” under Title VII;
- Compliance with other federal laws and regulations that restrict or prohibit the employment of individuals with certain criminal records; and
- Best practices for employers.
The EEOC has also created an Enforcement Guidance Q & A document. Employers should be aware that there are other federal and state laws that limit or prohibit employers from obtaining or asking applicants for criminal record information unless that information is required by a state or federal law or regulation.