Best practices from the EEOC guidance document on use of criminal background information

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) released a new guidance document pertaining to the use of arrest and conviction records in employment decisions. Due to the popularity of criminal background checks, the EEOC deemed it necessary to provide greater clarity on the fair use of background checks. This should assist employers to remain compliant with federal civil rights laws.

Part of the new guidance document includes a section on “Employer Best Practices.” Below are examples directly from the EEOC that are recommended for businesses and organizations as they utilize criminal record information in their hiring and recruiting processes.

General best practices:

  • 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 prohibition on employment discrimination.

Developing a policy:

  1. Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
    • Identify essential job requirements and the actual circumstances under which the jobs are performed.
    • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
    • Identify the criminal offenses based 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 consultations and research considered in crafting the policy and procedures.
  2. Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.

Questions about criminal records:

  • 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:

  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

There are many factors to consider when using criminal background information to evaluate a job applicant. Be sure to seek out your own expert or legal advice before implementing or changing a policy.

Here is a link to the guidance document:

Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964

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