New EEOC Guidance on the Consideration of Arrest and Conviction Reports in Employment Decisions

On April 25, 2012, the EEOC issued its updated enforcement guidance regarding the use of arrest and conviction records in connection with employment decisions.  If your company has a policy that requires that arrest or conviction records be taken into consideration when making employment decisions, the EEOC update enforcement guidance may be of interest to you. Here is the link:  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

In general, making decisions based upon an arrest record alone can be problematic and a violation under Title VII if the individual is a member of a protected class.  However, it is permissible to take into consideration the underlying conduct that led to the individual being arrested if the type of conduct for which the individual was arrested is job related.  For example, if you are hiring someone who will be responsible for financial matters and the person was arrested for stealing, the conduct for which the individual was arrested would be job related.

The EEOC has renewed interest in the use of arrest and conviction records in employment decisions because based upon its research and current arrest and incarceration rates, “African American and Hispanic men are arrested at a rate of 2 to 3 times their proportion to the population.” Assuming that the current incarceration rates continue, “1in 17 white men will serve time in prison during their lifetime, by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men” (citation omitted).

If you have any questions about this new enforcement guidance, click to contact christinaschwinn@paveselaw.com.