It is not an exaggeration to describe the recent efforts of the federal government to restrict certain hiring practices as a “war.” But a counterattack has been launched against those efforts, and it does not appear that employers, courts or even other state governments will willingly surrender. Here are a few developments to bear in mind.
The latest war began in 2012, when the Equal Employment Opportunity Commission (EEOC) issued the Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 2012 (“2012 Guidance”). The EEOC recommended as a best practice that employers not ask about criminal convictions on job applications, and that if and when they do make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity. The EEOC concluded that to establish a criminal conduct exclusion was job related and consistent with business necessity, an employer needs to show its policy operates to effectively link criminal conduct and its dangers with the risks inherent in the duties of a particular position.