The Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance in light of recent court decisions on the use of arrest and conviction records in making employment decisions. The EEOC Enforcement Guidance can be found here. The guidance is not binding on employers but the EEOC will be enforcing Title VII with the guidance in mind.
The EEOC’s “best practices” when using criminal records when making employment decisions are as follows:
General:
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- Eliminate policies or practices that exclude people from employment based on any criminal record.
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- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
Developing a Policy:
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- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
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- Identify essential job requirements and the actual circumstances under which the jobs are performed.
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- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
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- Identify the criminal offenses based on all available evidence.
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- Determine the duration of exclusions for criminal conduct based on all available evidence.
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- Include an individualized assessment.
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- Record the justification for the policy and procedures.
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- Note and keep a record of consultations and research considered in crafting the policy and procedures.
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- Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
Questions about Criminal Records:
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- 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.
Confidentiality:
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- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.