New and More Restrictive EEOC Enforcement Guidelines on Criminal Background Checks

Employment Law Newsletter

Many employers use criminal background checks to "weed out" individuals who engage in activities that pose significant risks to the workplace. This past April the United States Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 ("Guidance"). Employers should consult the Guidance before considering criminal histories when making employment decisions.

While having a criminal record is not a protected characteristic under Title VII, the Guidance warns that excluding an individual from employment on the basis of an arrest or criminal history may result in unlawful race or national origin discrimination under Title VII in one of two ways. First, the Guidance points to statistical evidence showing that Blacks and Hispanics are arrested and convicted in far greater numbers than Caucasians. Thus, an employer taking these records into account may unintentionally discriminate along racial and national origin lines because Blacks and Hispanics are disproportionately arrested as compared to other groups (commonly known as unintentional disparate impact discrimination). Second, an employer can utilize the existence of an arrest or conviction as a pretext to intentionally deny employment on the basis of race or national origin (commonly known as intentional disparate treatment discrimination).

To combat both unintentional and intentional discrimination by employers, the EEOC observed that 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 Guidance seeks to strike a balance between an employer’s right to protect its legitimate business interests by hiring or retaining honest, reliable employees with the rights of individuals to be free from discrimination in the workplace. It does so by requiring an employer to show that a policy excluding individuals with criminal records from employment is "job related for the position in question and consistent with business necessity." To meet this test, the employer must take into consideration 1) the nature and gravity of the offense; 2) the time that has passed since the offense or completion of sentence; and 3) the nature of the job held or sought. Only after considering these factors can an employer legitimately conclude that an individual’s criminal record renders him/her unsuitable for employment. Therefore, a blanket policy excluding individuals with criminal records that does not take into account these factors will be deemed presumptively invalid by the EEOC.

The Guidance warns that arrest records should generally not be considered by employers in making any employment decision because an arrest is not evidence that the individual actually committed the crime for which he/she was charged, and thus cannot meet the "job related and consistent with business necessity" test.

However, an employer may seek to verify whether the individual in fact engaged in the underlying activity through discussion with the employee or others. If the investigation establishes guilt, employment can be denied under the "job related and consistent with business necessity" test only if the conduct is closely tied to the specific job in question. In such instances, it is the underlying conduct, not the arrest, that determines the individual’s suitability for employment. Conversely, if the offense has little correlation to the employment position in question, no adverse action should be taken.

The EEOC’s Guidance recognizes that, unlike arrest records, criminal convictions are reliable evidence that the underlying criminal conduct occurred that may justify exclusion in the workplace. However, the Guidance warns that there may be factors, such as errors in the criminal prosecution or an outdated record, that undermines reliance on a criminal record.

The EEOC Guidance recognizes two methods by which an employer may show that a policy excluding individuals with criminal records from employment is job related and consistent with business necessity:

1) The validation study: Employers can undertake a study to validate that the criminal conduct justifies exclusion for the position pursuant to the Uniform Guidelines on Employee Selection Procedures (assuming data about the criminal conduct as it relates to the position in question is available and such validation is possible); or

2) The Targeted Screen and Individualized Assessment: First, the employer must conduct a "targeted screen" that requires the employer to consider 1) the nature of the crime, 2) the time elapsed, and 3) the nature of the employment position in question to determined whether there is a sufficient nexus between the criminal conduct and the position to justify exclusion. If a sufficient nexus is not established, exclusion is not justified.

If a sufficient nexus is established, the employer should nevertheless provide an opportunity for an "individualized assessment" to determine if the policy, as applied to the applicant in question, is job related and consistent with business necessity. This assessment consists of i) notice to the individual advising that they may be screened out due to the criminal conviction; ii) opportunity for the individual to explain that he/she should not be excluded under the circumstances; and iii) consideration by the employer as to whether the additional information supplied by the individual warrants an exception to the exclusion policy because as applied, the exclusion in not job related and consistent with business necessity.

Although the Guidance indicates that the individualized assessment is not required in all circumstances where the criminal conduct has a demonstrably tight nexus to the position in question (e.g., a convicted bank robber seeking a position as a bank teller), the use of the assessment will help employers avoid Title VII liability by allowing them to consider more complete information before rejecting an applicant with a criminal record.

Whereas the individualized assessment should generally be undertaken in all cases, the Guidance recommended that as a best practice, employers should not make any inquires about criminal histories in the application process, but hold such inquiries until a conditional offer of employment is made. In addition, employers should seek information on only those crimes that are job related and consistent with business necessity.

Employers are free to exclude an employee based upon criminal history alone if another federal law requires the exclusion on that basis. However, the Guidance warns that employers cannot look to state laws that exclude individuals with criminal convictions from certain positions because these state laws are preempted by Title VII. In such circumstances, the employer must independently demonstrate that the exclusion is job-related and consistent with business necessity.

This article highlights only some aspects of the EEOC’s Guidance. Employers are encouraged to act with heightened caution when utilizing criminal histories to make employment decisions. At a minimum, employers should look to the Guidance for best practices and work closely with employment counsel before taking adverse action on the basis of criminal records.


In May 2012, the New Jersey Senate passed a bill (S-455) that would prohibit employers in most circumstances from using credit histories in making hiring, firing and other employment decisions. Under the law, employers would be able to secure such information only if required by law or where the individual’s credit history is a "bona fide occupational qualification." Fines of $2,000 for a first violation and $5,000 for subsequent violations would be imposed. The bill’s Assembly counterpart (A2840) is still pending. If adopted into law, New Jersey would join seven other states that have passed legislation restricting employers’ use of credit histories.

Published on:

Comments are closed.

Contact Information