EEOC Enforcement Guide to Use of Arrest and Conviction Records

On April 25, 2012, the EEOC issued Enforcement Guidance to Employers on use of Arrest and Conviction Records in Employment Decisions.  

Oregon and Federal law permit employers to do criminal background checks of applicants as part of the hiring process.  Yet, because African Americans and Hispanics are arrested and incarcerated in numbers disproportionate to their representation in the general population, excluding applicants from employment based on criminal records can violate Title VII – which is why the EEOC is involved.

For example, a Title VII violation may occur when an employer treats criminal history information differently for different applicants or employees based on their race of national origin, like where an employer hires a white applicant with a criminal record but rejects an equally qualified Hispanic applicant with a similar criminal conviction.  Or, an employer may violate Title VII when they have a policy or practice that seems fair, but is discriminatory in operation (i.e., has the effect of disproportionately screening out a protected group) and the employer cannot demonstrate that the policy or practice is job related and consistent with business necessity.

Fundamentally, employers who use criminal background information in making hiring decisions need to carefully consider, in light of the essential job requirements for a particular position: what kinds of criminal conduct matters; how long ago the criminal conduct occurred; and whether the employee has an explanation or additional information about the conduct that is relevant.  Employers should also avoid policies that simply reject anyone who discloses a criminal conviction during the application process; statistically, such a policy will likely screen African American and Hispanic candidates at a higher rate than White applicants.

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