EEOC Issues New Guidance on Use of Arrest and Conviction Records Under Title VII

This snippet from a recent PLUS Journal article (published in the July 2012 issue), authors Mark Nelson and Frank Nardulli from Drinker Biddle & Reath LLP look at the recent EEOC Guidance on Title VII and offer tips for employers. From the article:

The Guidance states that if employers follow more stringent state or local laws they may nevertheless be held liable under Title VII unless its employment decision was job related and consistent with business necessity. Many states have enacted laws that regulate the hiring and continued employment of individuals who have been convicted of certain crimes, and these laws subject employers to penalties and sanctions for violating those laws. These laws often apply to health care providers and represent a considered judgment by a state legislature that certain criminal conduct is directly related to certain jobs and prohibiting individuals who have committed these crimes from working in those jobs is a business necessity. In many situations, compliance with these state laws is consistent with the Guidance. However, where an individual is disqualified from employment consideration consistent with a state law, an employer should consider making an independent determination that the criminal conduct is directly related to the individual’s suitability for employment and that rejecting that applicant for that specific position is consistent with business necessity.


One EEOC Commissioner, Constance Barker, dissented from the EEOC’s issuance of the guidelines, stating that the guidelines would intimidate business owners from conducting legitimate criminal background checks unless they were required to do so under another federal law. She also questioned whether the Commission had the jurisdiction to issue the Guidance.


In light of existing state laws and the EEOC’s Guidance, employers should:

  • Not inquire about arrest records
  • Review policies and practices to make sure that they do not include blanket prohibitions on the employment of individuals with any criminal records and revising hiring policies to link questions about criminal conduct to the position sought
  • Educate managers and decision makers on how to determine when particular criminal conduct is a legitimate disqualifying factor for a position within the organization

In addition, employers subject to state laws requiring employment screening should consider whether and how to comply with such laws in light of the EEOC’s new Guidance.

The full article can be found on the PLUS website.

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About plushq

The Professional Liability Underwriting Society (PLUS) was founded in 1986 by industry professionals who recognized the need for a forum for individuals involved in the field of professional liability. The Society is a non-profit organization with membership open to persons interested in the promotion and development of the professional liability industry. Membership consists of over 6,500 individuals, representing over 1,000 companies active in the many fields of professional liability. PLUS currently receives the support of more than 200 companies through corporate membership. PLUS is recognized as the primary source of professional liability educational programs and seminars, assistance to its members to help serve clients, and information regarding professional liability. The Society is continually seeking new means to fulfill its mission statement and better serve its members.

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