According to a recent New York Times article, ‘Wait. A Business Can Be Sued for NOT Hiring Criminals?’, many small business owners do not know it is illegal for employers to impose a “blanket ban” on hiring job applicants with criminal histories and are not aware that the Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – recently voted to update Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The NY Times article is available at: The EEOC guidance is available at: The Times article interviewed business owners, labor lawyers, and human resources consultants and found many small businesses “had no idea” there was anything wrong with employers using the criminal histories of job seekers to impose blanket bans on hiring applicants with a criminal records or that such practices would discriminate against them illegally in the eyes of the EEOC. The reason, said one labor lawyer interviewed for the story, was that many small businesses “don’t have an H.R. person and get minimal education about compliance issues,” and labor lawyers interviewed in the article say that the new EEOC enforcement guidance requires employers “to establish procedures to show they are not using criminal records to discriminate by race or national origin.” The EEOC originally issued three separate policy documents in February and July 1987 and in September 1990 explaining when the use of arrest and conviction records in employment decisions may violate Title VII of the Civil Rights Act of 1964 that prohibits employment discrimination based on race, color, religion, sex, and national origin. At a meeting on April 25, 2012, the EEOC voted 4 to 1 to update EEOC enforcement guidance that “builds on longstanding court decisions and guidance documents that the EEOC issued over 20 years ago” and “focuses on employment discrimination based on race and national origin.” Testimony and transcripts from the meeting are available at The new EEOC guidance discusses the differences between arrest and conviction records:

  • Arrest: The fact of an arrest does not establish the criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest is the conduct makes the individual for the position in question.
  • Conviction: In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
The EEOC Guidance also discusses disparate treatment and disparate impact analysis under Title VII:
  • Disparate Treatment: A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
  • Disparate Impact: An employer’s neutral policy (e.g., excluding applications from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.
The Guidance also describes two circumstances in which the EEOC believes employers will consistently meet the “job related and consistent with business necessity” defense:
  • The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII).
In addition, the updated EEOC Guidance also states that:
  • Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
  • State and local laws or regulations are preempted by Title VII if they ‘purport to require or permit the doing of any act which would be an unlawful employment practice’ under Title VII.
Lastly, the  EEOC recommends the following ‘Employer Best Practices’ for employers considering criminal record information when making employment decisions.
  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decision makers about Title VII and its prohibitions on employment discrimination.
  • Develop a narrowly tailored written policy and procedures for screening criminal records. Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine specific offenses that may demonstrate unfitness for performing such jobs. Identify criminal offenses on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence. Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultants and decision makers on how to implement the policy and procedures consistent with Title VII.
  • 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.
  • Keep information about applicants’ and employees’ criminal records confidential. Only use if for the purpose for which it is intended.
“All employers need an action plan to comply with the new rules of the EOCC guidance on the use of arrest and conviction records,” says Attorney Lester Rosen, Founder and CEO of background check firm Employment Screening Resources (ESR) and author of ‘The Safe Hiring Manual.’ Rosen, a background check expert and frequent speaker on due diligence issues nationwide, recently submitted a letter of public comment to the EEOC regarding the updated enforcement guidance on the use of criminal records by employers. The letter of public comment from Rosen to the EEOC is available at:  Rosen recently presented a complimentary webinar on June 14, 2012 with ESR President Brad Landin titled ‘Practical Steps Employers Can Take to Comply with the New EEOC Criminal Guidance’ to provide participants a pathway to compliance with new EEOC enforcement guidance on the use of criminal records. A recorded version of the webinar is available at: (ESR CLIENTS: For a recording of the ESR ‘Client Only’ EEOC Guidance webinar on May 31, 2012, contact ESR Customer Service at 415.898.0044 or [email protected].) For more information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and nationwide background check accredited by the National Association of Professional Background Screeners (NAPBS) – at, call 415.898.0044, or email [email protected]. Sources: About Employment Screening Resources (ESR): Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percentage of screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit, call 415.898.0044 or 888.999.4474 (Toll Free), or email [email protected]. About ESR News: The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at [email protected].]]>