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Labor: EEOC issues guidance on using criminal records to make employment decisions

Even if a criminal screening policy is equally applied, there may be underlying racial discrimination claims

The Equal Employment Opportunity Commission (EEOC) recently issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” an updated guidance regarding employer consideration of arrest and conviction records when making employment decisions.

The EEOC cites increasing and disproportionate incarceration rates for African American and Hispanic men as part of its justification for the new guidance. The guidance consolidates and supersedes EEOC policy statements from 1987 and 1990, and serves as a resource to employers considering employment decisions that would affect applicants or employees with criminal conduct records.

Addressing disparate treatment claims, the guidance notes that an employer may incur liability if evidence shows that it rejected an applicant of one race based on that applicant’s criminal record, but hired a similarly situated applicant of a different race with the same criminal record.

Regarding disparate impact claims, employers using seemingly neutral criminal screening policies in employee selection must be able to prove that such policies are job-related and consistent with business necessity. Such a showing requires a demonstration that the policy effectively links specific criminal conduct and its dangers to the risks inherent to the position at issue.

Contributing Author

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John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

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