On April 25, 2012, the U.S. Equal Employment Opportunity Commission issued an extensive document titled Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Although the EEOC describes the April 2012 guidance as an update, the accompanying EEOC questions and answers indicate that the guidance actually expands the EEOCs review of employers use of arrest/conviction information when EEOC charges are brought alleging that an employers use of the information had a discriminatory effect.
The EEOC takes the position that employers use of arrest or conviction information may be discriminatory in two potential ways:
- Disparate Treatment Discrimination: An employer may violate Title VII by treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.
- Disparate Impact Discrimination: An employer may violate Title VII when a company-wide policy about criminal records, applied in a non-discriminatory manner, unjustifiably or disproportionately excludes applicants of a particular race or national origin.
This article focuses primarily on disparate impact risks.
Why Now? Factors Leading to the April 2012 Guidance
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