The EEOC’s Recent Guidance on the use of Arrest and Conviction Records Leaves Questions for Employers
In the wake of the EEOC’s 4-1 decision to approve the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” employers are urged to take a fresh look at their application and assessment protocols when dealing with arrest and conviction information when making hiring-decisions. Employers need to understand that the EEOC’s guidance does not prohibit the use of such information as part of their pre employment screening process; however, employers will need to take a much closer look at their procedures when inquiring about and assessing the use of arrest and conviction information as it relates to job-relatedness and business necessity. The EEOC’s enforcement certainly comes with much ambiguity and leaves many unanswered question for employers. There will certainly be further questions and challenges from employers and interested stakeholders on proper use. For now, employers can reference the “Enforcement Guidance” on the EEOC website along with a Q&A section available for employers. The Enforcement Guidance also offers examples of individualized assessments that are consistent with meeting Title VII regulations. “Section VIII. Employer Best Practices” also provides insight into general considerations, developing policy, questions regarding criminal records, and confidentiality of such information. Industry experts have already started to weigh-in on the EEOC’s Guidance; please refer to the following document published by Seyfarth Shaw LLP., titled “How Should Employers Use Criminal History in Employment Now That The EEOC Has Issued Enforcement Guidance?” for further insight.
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