On April 25, 2012 the U.S. Equal Employment Opportunity Commission ("EEOC") issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended ("Guidance"). The Guidance addresses an employer's use of criminal history to exclude candidates from employment. While the Guidance makes clear that having a criminal record is not a protected status under Title VII, it provides that if an employer restricts hiring too broadly based on criminal records, it may violate Title VII based on the disparate impact it could have on certain protected groups.

Use of Arrest Versus Conviction Record

The Guidance re-affirms the EEOC's long-held position that arrests do not establish that criminal conduct occurred and are not proof of criminal conduct, and should not be inquired about as a method of employment screening. The Guidance proposes that convictions only be used to exclude an applicant from employment where the conviction is job-related for the position being filled and consistent with business necessity. The EEOC suggests that inquiries about convictions should be individually tailored, and thus not be included on a job application.

If an individual challenges his or her failure to receive a job offer based on a conviction and the person is in a protected status, the Guidance states that an employer will need to show that the exclusion is job-related and consistent with business necessity. The Guidance provides two circumstances that will consistently meet this standard:

1. Where the employer has validated the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures standards.
2. Where the employer develops a targeted screen considering at least the nature of the crime, the time elapsed since the conviction and the nature of the job. If implementation of this screen would exclude a candidate, the EEOC suggests there should then be an individualized assessment of the person excluded to make certain that the policy as applied is job related and consistent with business necessity. 

The first alternative, validation, can be expensive and time consuming, so it is anticipated that only large employers would be in a position to consider validation as a way of defending the use of criminal records. Most employers will be required to rely on the second alternative. According to the Guidance, an individualized assessment should include informing the individual that he or she may be excluded because of past criminal conduct and providing an opportunity for the applicant to demonstrate that the exclusion does not properly apply to him or her.

The Guidance was passed by a 4-to-1 vote of the Commissioners. The lone dissenting Commissioner, Constance Barber, is reported to have said that the new guidance "obviously exceeds our authority as an enforcement agency" because it places obligations on employers not required by Title VII. "I'm afraid the only real impact the guidance will have will be to scare business owners from ever conducting criminal background checks."