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The EEOC’s Recent Guidance on the use of Arrest and Conviction Records Leaves Questions for Employers

EEOC SealIn the wake of the EEOC’s 4-1 decision to approve the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” employers are urged to take a fresh look at their application and assessment protocols when dealing with arrest and conviction information when making hiring-decisions.  Employers need to understand that the EEOC’s guidance does not prohibit the use of such information as part of their pre employment screening process; however, employers will need to take a much closer look at their procedures when inquiring about and assessing the use of arrest and conviction information as it relates to job-relatedness and business necessity.  The EEOC’s enforcement certainly comes with much ambiguity and leaves many unanswered question for employers. There will certainly be further questions and challenges from employers and interested stakeholders on proper use.  For now, employers can reference the “Enforcement Guidance” on the EEOC website along with a Q&A section available for employers.  The Enforcement Guidance also offers examples of individualized assessments that are consistent with meeting Title VII regulations.  “Section VIII. Employer Best Practices” also provides insight into general considerations, developing policy, questions regarding criminal records, and confidentiality of such information.  Industry experts have already started to weigh-in on the EEOC’s Guidance; please refer to the following document published by Seyfarth Shaw LLP., titled “How Should Employers Use Criminal History in Employment Now That The EEOC Has Issued Enforcement Guidance?” for further insight.

EBI is committed to providing employers with valuable education and resources on changing legislation and cutting-edge and compliant solutions to meet federal, state, local and international mandatory requirements.  EBI will continue to update you on any further action or information available regarding this topic.

All information contained herein is provided by Employment Background Investigations, Inc. (EBI) solely for the convenience of its clients and readers. EBI is not providing legal advice or counsel and nothing provided within this post should be deemed as legal guidance or advice.  Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.

EBI’s Chief Knowledge Officer, Mr. Robert E. Capwell, is considered one of the leading experts in the background screening industry with over 22 years of experience in the field. Mr. Capwell was a contributing author of the second edition of the ASIS Pre-employment Background Screening Guidelines and has written numerous articles and whitepapers for various publications including a periodic column on background screening for The Society for Human Resource Management (SHRM) Online. He has been quoted in The Wall Street Journal, Human Resource Executive Magazine, Entrepreneur Magazine, and several HR-related publications. Mr. Capwell speaks regularly to industry colleagues and HR Professionals both nationally and internationally.