EEOC Issues Background Checks “Guidance”

June 20, 2012

On June 19, NSBA submitted comments regarding the U.S. Equal Employment Opportunity Commission’s (EEOC) Strategic Plan for Fiscal Years 2012 – 2016, arguing that “unlawful high school diploma requirements do not constitute a significant problem and should not be an enforcement priority.  NSBA went on to express doubt that criminal background checks are being misused to any significant degree for an unlawful discriminatory purpose, and thus should not be an enforcement priority.

Previously, on April 25, 2012, the EEOC issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.”  This 55 page “guidance” document does little to actually clarify what the EEOC regards as permissible with respect to the use of criminal background checks.

Except where federal law has relevant requirements, the EEOC expects business owners to conduct a complex individualized assessment weighing numerous factors regarding the use of conviction records in each hiring decision.  The document does, however, make it clear that even if a business is required by state law to conduct a criminal background check and not hire certain felons that the state law requirement will not bar an EEOC enforcement action against the business.

In general, it is inadvisable for an employer to rely at all on arrest records. The fact of an arrest does not establish that criminal conduct has occurred. The EEOC considers convictions to be reliable evidence that the underlying criminal conduct occurred. However, for example, a policy or practice that excludes everyone with a felony conviction from employment will be deemed to violate the Civil Rights Act.

The EEOC has also adopted the position the high school diploma requirements (and other education attainment requirements) may be a violation of the Civil Rights Act and the Americans with Disabilities Act (as discrimination against the learning disabled).  NSBA has written to the EEOC to express its opposition to this policy.

To read this the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, click here.

To read the EEOC’s Questions and Answers about the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, click here.

To read the NSBA letter to the EEOC regarding high school diploma requirements, click here. 

To read the NSBA comments on the EEOC’s Strategic Plan for Fiscal Years 2012 – 2016, click here.