The EEOC recently updated its guidelines for employers who conduct criminal background checks of job applicants ("Guidance"). See EEOC Enforcement Guidance, April 25, 2012. This latest revision reiterates the EEOC’s position that excessive or inappropriate reliance by employers on the criminal records of their potential employees may disproportionately affect classes of individuals protected under Title VII.

It has long been the EEOC’s position that an employer can only consider a candidate’s criminal background insofar as that consideration is related to the job position and consistent with the employer’s actual business needs. The new Guidance provides further detail regarding what an employer must do to establish that a criminal history check is “job related for the position in question and consistent with business necessity.”

The Guidance identifies three primary factors, known as the “Green factors”1 that are relevant to determining whether a candidate’s criminal conduct is job-related and consistent with business necessity such that it can be considered in the employer’s hiring decision:
  1. The nature/severity of the criminal conduct.
  2. The time that has passed since the conduct took place; and 
  3. The nature of the position that the candidate is seeking.
The Guidance advises employers to analyze these factors by either applying the Uniform Guidelines on Employee Selection Procedure (found at 29 C.F.R. §§ 1607.1, et seq.) or by applying an individualized analysis known as a “target screen,” wherein the employee is notified that his/her criminal record is being considered and permitted to offer additional information.

The new Guidance also explicitly distinguishes between arrests and convictions. The Guidance prohibits employers from treating the mere “fact of an arrest” as sufficient reason to deny an otherwise qualified individual from employment. Notably, however, this provision leaves open the possibility that an employer may conduct a further investigation into the circumstances surrounding an arrest and thereby establish a valid business necessity for rejecting the candidate’s job application. This prohibition of automatic exclusion for arrests is consistent with the EEOC’s preference for a case-by-case analysis.

In sum, the Guidance advises to employers to do the following:
  1. Stop using policies that automatically reject candidates based on particular criminal violations or arrests.
  2. Limit the use of criminal background checks to job-related offenses where business necessity is present.
  3. Impose a clear and narrow policy of when and how to screen job applicants that allows for an individualized analysis; and 
  4. Provide training for decision makers on how to properly apply the policy within the confines of Title VII and the new guidelines.
1 The Green factors are named for the Eighth Circuit decision in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).