The new EEOC guidelines deal with the use of arrest and conviction records in employment-related decisions like hiring and rejection of prospective employees. The EEOC also issued a list of questions and answers about the new guidelines.

While the new documentation does not prohibit employers from using criminal background reports about job applicants or their employees, the EEOC seeks to ensure that such information is not used in a discriminatory way.

There are two ways in which an employer's use of criminal history information may be ruled discriminatory.

• First, Title VII of the Civil Acts of 1964 prohibits employees from treating job applicants or employees with the same criminal records differently because of their race, national origin or other protective characteristic (disparate treatment discrimination).
• Second, the law also prohibits disparate “impact” discrimination. That means that if criminal record exclusions operate to disproportionately exclude people of a particular race or national origin, the employer has to show that the exclusions are “job related and consistent with business necessity” to avoid liability.

In light of the new guidelines, we recommend employers do the following:

• If a decision is made to exclude an applicant after a criminal record check, make sure the exclusion is indeed “job related and consistent with business necessity,” as the new guidelines require.
• Perform an “individualized assessment” upon consideration of job applicants.
• Consider at least the nature of the crime, the time elapsed since the criminal conduct occurred, and the nature of the specific job in question.
• Inform the applicant that prior criminal convictions will be considered in the hiring decision, but also give an applicant who may be excluded by the screening process the opportunity to show why he or she should not be excluded.

The new EEOC guidance also contains an “Employer Best Practice” section that provides examples for employers who use criminal record information in making employment decisions.

The guidance can be found at this page on the EEOC website:
www.eeoc.gov/law/guidance/arrest_conviction

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Martin J. Boetcher is an attorney with Harrington, Hoppe & Mitchell in Youngstown. His practice areas include employment law, civil litigation, workers' compensation law and insurance law.