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EEOC Enforcement Guidance

The EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964. In the first review of EEOC guidelines in many years, the EEOC consolidated and updated the United States Equal Employment Opportunity Commissions guidance documents regarding use of arrest or conviction records in employment decisions. The full text of the newly issued guidance is available at:

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

The conclusion of this review found that an employer’s use of an individual's criminal history when making employment decisions could, in some instances, violate the prohibition against employment discrimination under Title VII. The EEOC has focused on potentially discriminating practices and creating employment opportunities for ex-offenders within reason. Employers who have a blanket prohibition based solely on any criminal record will violate Title VII. The EEOC has had guidelines in place for many years for an employer to evaluate a criminal record and the applicant's suitability for position. The most recent Enforcement Guidance issued at the end of April builds a foundation for employers to follow to meet the requirements. The Guidance also outlines employer activities that will place the employer in violation of Title VII.

While most of the information contained in the revised guidance has been issued previously, there are additional guidelines and practices that employers must follow to prevent discrimination. While the EEOC Enforcement Guidance can seem at first to be burdensome, the overall intent is logical and fair. The guidance provides a blueprint by which employers may fairly evaluate the applicant, their criminal history and offer opportunities to those who should not be continually punished for mistakes in their past. The guidance also provides protection for employers who deny employment based on criminal history. Any policy or practice that results in an automatic exclusion from all employment opportunities because of any criminal conduct is inconsistent with practices of the EEOC. The following is an outline of the primary positions, best practices issued by the EEOC and processes employers may institute to comply with applicable laws and offer opportunities.

 Factors employers must utilize to determine the use of a criminal record to deny employment.

  • The facts or circumstances surrounding the offense or conduct
  • The number of offenses for which the individual has been convicted
  • The individual's age at the time of the conviction
  • 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
  • The length and consistency of employment history before and after the offense or conduct
  • Rehabilitation efforts including education, training and work history
  • Employment or character references and any other information regarding fitness for the particular position and
  • Whether the individual is bonded under a state, federal or local bonding program


 There is a growing movement in many states to “ban the box”, the question on the employment application that asks the applicant to provide if you have you ever been convicted of a crime. The EEOC does not advocate banning the box at this time. The EEOC recommends that employers should not ask about convictions on employment applications. If and when an employer makes such inquiries, this should occur at the end of the pre-employment information gathering process and should be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity. Additionally, there is a concern that a blanket policy that denies employment for making false statements on an employment application may be discriminatory when it comes to evaluating a past criminal history that was not disclosed by the applicant. Employers should consider a policy that will only deny employment for a criminal history that was not disclosed if the record is job-related and consistent with business necessity. For example, an individual who was convicted of shoplifting twenty years ago and is applying for a position as an Administrative Assistant should not be denied employment if they fail to divulge the record.

The EEOC recommends that if an employer intends to exclude an applicant due to prior criminal conduct, an individualized assessment should be conducted. The assessment should consist of a notice to the applicant that they were denied an employment opportunity due to a prior criminal conviction. The applicant should be given an opportunity to demonstrate that the exclusion should not be applied in this case due to their particular circumstances, that consideration by the employer of additional information provided by the applicant warrants an exception to the exclusion policy and that the record is not job-related or consistent with business necessity.

 Employers should consult an employment law attorney when creating a policy to evaluate criminal records in accordance with the new EEOC Enforcement Guidance.