In April 2012, the EEOC issued updated enforcement guidance on employer use of arrest and conviction records in hiring decisions. This comes on the heels of a $3 million settlement with an employer whose criminal background check policy disproportionately excluded African-American applicants. The policy was neutral on its face.
The EEOC guidance provides that the use of individual arrest and conviction history to exclude a potential hire may amount to unlawful employment discrimination where the employer policy disproportionately impacts or excludes certain protected classes from hiring consideration. This is true even where the policy is facially neutral. With the EEOC’s eye on the issue, SBH recommends employers reconsider hiring policies and its use of arrest and conviction histories. Blanket policies should be avoided. Rather, policies should be narrowly tailored and specifically targeted so that exclusion only occurs where the employer can articulate a legitimate business reason why exclusion is appropriate. A policy will pass EEOC scrutiny when it is job-related and consistent with business necessity giving consideration to: the nature of the job at issue; the nature and gravity of the offense or conduct; and the time that has passed since the offense or conduct and/or completion of the sentence. If you would like to update your company’s hiring policies, please contact the SBH employment team who can guide you in developing an effective and appropriate policy.
And in news of the weird, It appears that even the EEOC is not exempt from being accused of discrimination. A former EEOC administrative judge has sued alleging the EEOC discriminated against her because of disability. She claims the agency refused her reasonable disability accommodation and later retaliated after she complained of the alleged discrimination. The case will be heard in district court and SBH will be monitoring all developments in the case.