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Following its April 25 public meeting, the EEOC issued an Enforcement Guidance regarding use of criminal background checks during the hiring process. The Guidance details the EEOC's long-held position that a blanket "no-hire" policy for applicants with criminal histories violates Title VII unless the employer can demonstrate a business need for use of the information. Since 92% of employers use criminal background checks, the Enforcement Guidance will impact almost all employers, particularly those with high employee turnover.

The EEOC re-affirms that persons with criminal histories are not a protected class, and that use of criminal histories is not per se prohibited. However, the Enforcement Guidance distinguishes between uses of arrest records versus conviction records.

Citing the statistically higher minority arrest rate and the inaccuracies in arrest records, the Guidance states that a blanket prohibition against hiring applicants with an arrest record unreasonably and disproportionately impacts minorities, violates Title VII and is prohibited. This, despite a 2006 University of Chicago study which found just the opposite – that employers using criminal background checks were statistically more likely to hire minorities. The Guidance requires employers to look not at the mere fact of the arrest, but the conduct underlying the arrest. So, an arrest for theft could disqualify an applicant for a bank teller position, but not a meter reader position.

Since conviction records are more reliable, denial of employment based solely on the mere fact of a criminal conviction is permitted.  Nevertheless, the Guidance suggests the following: 1) do not ask for conviction information on applications; 2) inform applicants that employment may be denied based on criminal history; 3) develop, implement and train decision makers on a written policy which identifies the essential functions of a position (i.e., use your FMLA job description), identifies which convictions would logically disqualify an applicant for that position, and gives applicants the opportunity to explain convictions; and 4) consider other factors such as the applicant's age at the time of the offense, the number of convictions, working history since the conviction, character references, etc.  Notably, none of these steps are required.

The Guidance acknowledges that it is trumped by Federal laws and regulations which prohibit employment of applicants with criminal histories. However, the Guidance states that employers must ignore inconsistent state and local laws and regulations. The Guidance is very detailed and specific. You can only gain a full appreciation for its content by reading it – Cliff Notes will not work here.