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Labor: 6 tips for complying with EEOC guidance when using arrest and conviction records

Consistent hiring practices can help to avoid charges of disparate impact discrimination

In April, the Equal Employment Opportunity Commission (EEOC) issued a revised Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Right Act of 1964 (Guidance). Under the Guidance, an employer may commit disparate impact discrimination against a protected minority classification if the evidence shows that its facially neutral arrest and conviction policy or practice disproportionately denies employment to a protected minority group and the employer cannot demonstrate that the policy or practice is relevant to the position in question and consistent with business necessity.

The new guidance replaces and updates the EEOC’s 1987 policy. According to the agency, statistical evidence demonstrates that African Americans and Hispanics are arrested and convicted of crimes at a much higher rate than the general population, and that facially neutral arrest and conviction policies may have a discriminatory disparate impact on their being selected for employment. Under the new guidelines, an employer may defend against a claim of disparate impact discrimination if it shows that the disparate impact is job-related and consistent with the needs of the business. To make this defense, employers must consider three factors:

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Mark Spognardi

Mark Spognardi is a partner at Arnstein & Lehr. He focuses on representing management in traditional and non-traditional labor and employment law matters, including counseling,...

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