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April 27, 2012

EEOC's Enforcement Guidance Reminds Employers That Use of Criminal Screens Must be Job-Related

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.  The Enforcement Guidance is available on the EEOC’s website,  According to the Enforcement Guidance, criminal records or arrest information obtained during background checks cannot be used to screen applicants or current employees unless the conviction is related to the field of work in which the candidate is seeking employment.  While the Enforcement Guidance does not make reliance on criminal background checks per se illegal, it greatly limits an employer’s ability to make job related decisions on the basis of criminal background checks.

Criminal Convictions

The Enforcement Guidance confirms the EEOC’s long standing position that the use of criminal background checks has a disparate impact on certain minorities and thus violates Title VII unless job related and consistent with the business necessity.  To establish job-relatedness, an employer bears the burden of showing that the criminal conduct is related to risks inherent in the duties of the particular position applied for.  According to the Enforcement Guidance, one way an employer can meet its burden “is to develop a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job,” and then provide an opportunity for an “individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.”

Arrest Records

The Enforcement Guidance also explains that an arrest does not establish that criminal conduct has occurred, and exclusion from employment based on an arrest is therefore not job related.  However, according to the EEOC, “an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”  Because it is difficult to obtain information regarding conduct underlying an arrest, it is often impossible for an employer to rely on arrest records under the standard articulated in the EEOC’s Enforcement Guidance.

Interaction with Other Laws

Compliance with other federal laws that conflict with the above - for example, a federal law that requires criminal background checks - is a defense to charge of discrimination under Title VII.  However, state or local laws which permit employment decisions based on criminal convictions or arrests are generally preempted by Title VII and the more restrictive EEOC Enforcement Guidance must be followed.

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Employers should proceed with caution when using criminal background screens on potential and current employees. If you have any questions regarding the EEOC’s stringent requirements regarding criminal screening, please contact us.