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EEOC Releases New Guidance on the Use of Conviction and Arrest Records in Hiring

The EEOC recently released new guidance regarding the use of criminal conviction and arrest records in hiring.[1] This guidance, issued on September 7, 2011, came from the Office of Legal Counsel in response to the Peace Corps’ questions regarding their applications.

Although Title VII does not prohibit an employer from asking about an applicant’s criminal history, an employer’s use of this information may constitute discrimination under Title VII. The EEOC is particularly concerned about the possible discriminatory impact on minorities as a disproportionate number of Hispanics and African Americans are arrested and convicted.

The EEOC has already issued policy guidelines stating that the use of conviction and arrest history in hiring must be used in a manner that is job related and consistent with business necessity. In its recent discussion letter, it aimed to provide further direction on what types of inquiries are permissible. The EEOC also found that “job related and consistent with business necessity,” has a differing application between inquiries into convictions and arrests. The following is a summary of the EEOC’s guidance.

Conviction Records

Presently, for an employer to legally exclude an applicant based on convictions, the criminal conduct must be (1) recent and (2) sufficiently related to the job’s duties and qualifications. Thus, the EEOC recommended that a criminal history inquiry should only focus on convictions that are both related to the specific position and have taken place within the past seven (7) years. It suggested that a question which requires an applicant to list all convictions is too broad in scope. In Nevada, the Nevada Equal Rights Commission has also issued guidelines which state that any questions regarding convictions should also be accompanied by a statement that a conviction will not necessarily disqualify the applicant from the job.

Arrest Records

As arrest records, unlike conviction records, are not probative of guilt, the EEOC questioned the purpose and usefulness of asking applicants about any arrests at all. If an application does inquire into arrest history, the question must be related to the sought after positions. The EEOC also stated that an employer should give the applicant a reasonable opportunity to dispute the validity of an arrest record before making a hiring decision. The Nevada Equal Right’s Commission, however, has taken this a step further and issued guidelines for employers which state that questions regarding arrests are unacceptable.

[1] http://www.eeoc.gov/eeoc/foia/letters/2011/title_vii_criminal_record_peace_corps_application.html


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