EEOC Updates Guidance on Use of Arrest, Conviction Records in Employment Decisions

By Judy Greenwald

Apr. 25, 2012

The U.S. Equal Employment Opportunity Commission issued an updated enforcement guidance on employers’ use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 on April 24.

The EEOC, which voted 4-1 to approve the guidance document, also will issue a question-and-answer document about the guidance that will be available at its website at

EEOC Chair Jacqueline A. Berrien said in a statement, “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers and many other agency stakeholders.”

The EEOC said the guidance builds on longstanding guidance documents that the agency issued more than 20 years ago.

Among the topics it discusses are:

• How employers’ use of individuals’ criminal history in making employment discrimination could violate Title VII;

• Federal court decisions analyzing Title VI as applied to criminal record exclusions;

• The differences between the treatment of arrest and conviction records;

• The applicability of disparate treatment and disparate impact analysis under Title VII;

• Compliance with other federal laws and regulations that restrict or prohibit employing individuals with certain criminal records; and

• Best practices for employers.

Commenting on the report, Leslie E. Silverman, a partner with law firm Proskauer Rose L.L.P. Washington and a former EEOC vice chair, said “The guidance consolidates a series of guidance documents and other documents that provide guidance over a 20-25 year period, and very little of it cumulatively” is either new “or shattering.”

The Alexandria, Virginia-based Society for Human Resource Management said in a statement it “is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.”

However, SHRM adds it “remains concerned with the potential conflict between this federal guidance and state laws that require criminal background checks in some industries and for some positions.”

Those applauding the guidance included the Washington-based Lawyers Committee for Civil Rights Law, which said in a statement it “will greatly reduce the misuse of criminal history background checks to deny employment to persons of color.”

It said the guidance “strengthens enforcement efforts against employers who are misusing criminal background checks and provides clear guidance to employers on the appropriate use of such background checks.”

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email

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Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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