EEOC Opinion Distinguishes Between Arrest and Conviction Records

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As the Equal Employment Opportunity Commission (EEOC) continues to scrutinize the hiring process and its impact on job seekers, employers should consider leveraging the findings and opinions of the committee to review their own employment background screening programs to ensure alignment.

On September 7, 2011,, the EEOC published an informal opinion letter that analyzed the use of criminal arrest and conviction records for employment screening under Title VII of the Civil Rights Act of 1964. While the EEOC did not reveal whether it will update its 1987 Policy Statement on the Issue of Conviction Records under Title VII, it did recently express its opinion regarding the use of criminal records during employment background screening.

EEOC Opinion: Arrest Records should be Treated Differently from Conviction Records
In considering a recent request from the Peace Corps to review its volunteer application that asked applicants to disclose their criminal history, the EEOC distinguished between arrest and conviction records.

  • Conviction Records: In order to exclude a job applicant based on a criminal conviction, the EEOC staff attorney stated that the criminal conduct should be “recent enough” and “sufficiently job-related to be predictive of performance in the position sought, given its duties and responsibilities.” Thus, the attorney recommended that the Peace Corps narrow its criminal history inquiry to focus on “convictions that are related to the specific positions in question, and that have taken place in the past seven years . . .”
  • Arrest Records: According to the staff attorney, arrest records are unreliable indicators of guilt because, among other things, charges may have been dismissed or the public record may not contain subsequent favorable information about the arrest. As a result, she advised the Peace Corps to “consider whether its questions about arrests and charges will serve a useful purpose in screening applicants” and, if so, she recommended that the Peace Corps only ask about arrests and charges for offenses that are related to the position in question and give the job applicant a reasonable opportunity to dispute the validity of any information showing that the applicant has an arrest record.

The EEOC’s opinion letter from the Office of Legal Counsel suggests that the EEOC:

  • Will continue to differentiate between arrest and conviction records.
  • May not be prepared to adopt a presumption of disparate impact in this context.
  • Will in the event of a finding of disparate impact, closely scrutinize the employer’s policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.

What this Means for Employers
Although the opinion letter expressly states that it “does not constitute an official opinion of the Commission,” it nonetheless suggests that one of the EEOC’s continuing priorities is to regulate the use of criminal records by employers.

As a result, employers should consider conducting a privileged review of their conviction-based employment background screening policies to identify any areas that may increase the risk of disparate impact claims, continue to monitor developments in this evolving area of law and be mindful of their obligations to comply with the federal Fair Credit Reporting Act and state fair credit reporting and employment laws.

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