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EEOC Opinion Letter Provides Guidance on Use of Arrest and Conviction Records When Hiring

November 1, 2011
In response to an employer’s request, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a non-binding opinion letter that provides insight into the Commission’s current enforcement position regarding protections for job applicants with arrest or conviction records under Title VII of the Civil Rights Act of 1964.  The letter suggests that the Commission will continue to treat arrests and convictions differently and will closely review the employer’s policy with regard to how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question. Regarding conviction records, the EEOC states that criminal conduct should be “recent enough” and “sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.”  As a result, the EEOC recommended that the employer narrow its criminal history inquiry to focus on “convictions that are related to the specific positions in questions, and that have taken place in the past seven years, consistent with the proposed provisions of the federal government’s general employment application form.”  Because the criminal justice system requires the highest degree of proof for a conviction (i.e., beyond a reasonable doubt), a conviction record can serve as a sufficient indication that the person, in fact, committed the offense.  Regarding arrest records, the EEOC explains that they are unreliable indicators of guilt because: (1) individuals are presumed innocent until proven guilty; (2) charges may be incomplete or eventually dropped; and (3) the possibility of errors in arrest records including mistaken identities, clerical errors, confusion regarding names, etc.  While the letter clarifies that a pre-employment inquiry concerning an applicant’s criminal history does not itself violate Title VII, it does suggest that the use of criminal records as part of the screening process may be a violation if the employer intentionally and selectively enforces its screening policy against members of protected classes.  The letter further explains that if it is determined that the policy has a disparate impact on protected class members, the employer’s policy regarding the use of arrest and conviction records must be “job related and consistent with business necessity.” Even though the EEOC states that the letter “does not constitute an official opinion of the Commission,” it does suggest that this is a high priority area for the EEOC.  As a result, employers should review their screening policies and practices as they relate to arrest and conviction records to identify any possible risks of disparate treatment or disparate impact.   For additional information on pre-employment inquiries regarding arrests and conviction records, visit the EEOC website.  For pre-employment resources and tools, including checklists and sample forms, visit AGC’s Labor & HR Topical Resources webpage.  The primary category is “Hiring & Firing” and the secondary category is “Hiring.”
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