The Equal Employment Opportunity Commission (EEOC) provides guidance on the use of criminal history in employment decisions through its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
The EEOC guidance encourages employers to consider the following three factors when using criminal history information:
- The Nature of the Crime: Employers should assess the nature and gravity of the offense, considering whether it is relevant to the job position in question. For example, if the position involves handling finances, a conviction related to theft may be deemed relevant.
- The Time that has Passed: Employers should consider the time that has elapsed since the conviction or completion of the sentence. The EEOC suggests that the significance of an older conviction diminishes over time, and a policy that excludes applicants based on older convictions may have a disparate impact.
- The Relationship to the Job: Employers should assess the relationship between the criminal conduct and the specific job requirements. They should consider the potential risks and liabilities associated with the position and determine if the conviction is likely to affect the person’s ability to perform the job safely and responsibly.
The EEOC further advises employers to conduct an individualized assessment when considering an applicant’s criminal history. This involves giving individuals an opportunity to explain the circumstances surrounding their convictions, consider evidence of rehabilitation, and make a case for their qualifications.
The EEOC guidance emphasizes that blanket exclusions based solely on criminal history can disproportionately impact certain protected groups, such as racial and ethnic minorities, and may lead to violations of Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, national origin, sex, and religion.
Employers are encouraged to review the EEOC’s guidance in detail and consult legal professionals to ensure compliance with applicable laws and regulations related to the use of criminal history in employment decisions.
Click here to read more about the EEOC’s guidance on background checks for employers.