EEOC Updates Policy Regarding Employer Use of Background Checks to Bar Applicants with Criminal Arrest and Conviction Records

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) approved updated enforcement guidance which clarifies that criminal record information obtained from applicants during background checks cannot be used to screen potential or current employees under Title VII of the Civil Rights Act of 1964 (“Title VII”) unless the conviction is job-related. The new guidance consolidates and supersedes the EEOC’s 1987 and 1990 policy documents on the issue.

The EEOC approved its updated policy by a 4-1 vote, stating that although Title VII does not ban the use of criminal background checks, employers may violate Title VII if (1) their polices adversely impact a disproportionate number of individuals based on a protected characteristic and are not “job related and consistent with business necessity” or (2) if they intentionally discriminate among individuals with similar criminal histories.

Democratic EEOC Commissioner Stuart Ishimaru said the new guidance contains “nothing new” from a policy perspective, and simply expands the EEOC’s views regarding employers’ use of arrest and conviction records given technological changes in hiring and employment as well as employers’ increasing use of background checks. However, Republican EEOC Commissioner Constance Barker, who cast the sole dissenting vote, argued that the new guidance exceeds the EEOC’s authority because it places obligations on employers not required by Title VII.