What You Should Know About the EEOC and
Arrest and Conviction Records – Best Practices for Employers
On April 25, 2012, the Commission, in a 4-1 bi-partisan vote, 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, as amended, 42 U.S.C. § 2000e. The Guidance updates, consolidates, and supersedes the Commission’s 1987 and 1990 policy statements on this issue, as well as the relevant discussion in the EEOC’s Race and Color Discrimination Compliance Manual Chapter. The Guidance is designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.
The guidance includes the following best practices for employers:
- Eliminate policies or practices that exclude ex-offenders.
- Train managers, hiring officials and decision makers about Title VII and how to implement policy and procedures consistent with Title VII.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. This includes identifying essential job requirements and the actual circumstances under which the jobs are performed; determining the specific offenses that may demonstrate unfitness for performing such jobs; determining the duration of exclusions for criminal conduct based on all available evidence; recording the justification for the policy and procedures; and noting and keeping a record of consultations and research considered in crafting the policy and procedures.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity (not an outright ‘ban the box’ that appears on the application but some employers may consider taking the question regarding criminal convictions off the application).
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
Factors to Consider for Assessing Criminal Records
- Facts and circumstances surrounding the offense or conduct;
- Number of offenses for which the individual was convicted;
- Time that has passed since time of conviction or release from prison;
- Rehabilitation efforts (additional schooling or training);
- Length and consistency of employment history before and after the offense or conduct;
- Employment or character references and other information regarding fitness for the particular position;
- Whether the individual is bonded under federal, state or local bonding program; and
- Evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct.
The Guidance states that an “individualized assessment” generally requires:
- Informing the individual that he or she may be excluded because of past criminal conduct;
- Providing an opportunity for the individual to demonstrate that he or she should not be excluded because of the past criminal conduct; and
- Considering any information provided by the applicant regarding the past criminal conduct to determine if the exclusion as applied is job related and consistent with business necessity.
The EEOC guidance on “Consideration of Arrest and Conviction Records in
Employment Decisions Under Title VII of the Civil Rights Act of 1964″
may be found here:
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