The federal Equal Employment Opportunity Commission (EEOC) recently updated its guidance document on the use of arrest and conviction records in employment decisions. The EEOC states that an employer’s use of criminal records may violate federal employment discrimination laws when the employer:
- treats criminal history information differently for different applicants or employees based on race or national origin or
- uses a neutral policy that (a) excludes all applicants based on criminal conduct but disproportionately impacts some individuals who are protected by federal anti-discrimination laws and (b) is not job related or consistent with a business necessity.
The EEOC states that one way an employer’s criminal records screening can meet the job related and business purpose requirements is by considering the nature of the individual’s crime, the time elapsed since it was committed, and the nature of the job. While the EEOC states that federal law does not require this individual assessment in all circumstances, a criminal records screen without the assessment is more likely to violate federal law.
