This week, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued ”Updated Enforcement Guidance,” reminding employers that screen applicants’ criminal backgrounds that they must prove that any use of information acquired through such screens is job-related to avoid potential discrimination suits. 

The Enforcement Guidance states that an employer accused of violating Title VII will have to carry the burden of proving it followed the standards and did not discriminate against minorities or employees with criminal records who could adequately perform the necessary job tasks. 

The EEOC maintains that the updated guidelines do not reflect a change in the Commission’s policies, but rather that additional legal analysis and factual background was needed to support the Commission’s stance, particularly after the Third Circuit Court of Appeal’s ruling in 2007 in El v. Southeastern Pennsylvania Transportation Authority, which called for the Commission to provide more legal analysis and updated research on the issue.

Commenting on the new Guidance, EEOC Chairwoman Jacqueline A. Berrien stated that it “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

Commissioner Constance S. Barker, however, who cast the lone dissenting vote against issuing the Guidance, voiced concern that the Guidance goes beyond the jurisdiction of the EEOC, will negatively affect business owners, and did not receive sufficient public comment.

Notably, Section VIII of the Guidance offers examples of best practices for employers considering criminal record information when making employment decisions.  Employers who screen applicants’ criminal backgrounds should take note of the new Guidance and consider some of the best practices suggested therein.