It’s no surprise that with the increase of technology in the workplace digital information is becoming increasingly relevant in the hiring process. The wide availability of information online can cut the time and cost of screening a prospective employee, but it also creates a new opportunity for discrimination (or allegations of it).

This issue was recently addressed by the Equal Employment Opportunity Commission (EEOC) with the release of new guidelines for employers on the consideration of arrest and conviction records in employment decisions.

The EEOC’s Guidance on Background Checks

The EEOC's guidelines are recommendations for employers to consider in the hiring process to keep them compliant with Title VII.  When it comes to use of arrest and conviction records, the guidelines on this had not been updated for 25 years.

Take into consideration that in 1987:

• Gas was 89 cents a gallon (Today: $3.89...and climbing)
• The average price for a new car was $10,305 (Today: $28,400)
• Microsoft introduced Microsoft Works (Today: Microsoft 365 cloud computing)
• 45 million PCs were in use in the United States (Today: 156 million)

Time for an update? We think so, and so did the EEOC.

Don’t judge by an applicant by their arrests (and maybe not by their convictions either.)

The new EEOC guidelines released in April of this year focus on the impact that consideration of arrest and convictions records can have on certain racial and ethnic groups. Although discrimination may not be intended by employers, if a hiring practice has a disparate impact on applicants of a protected class, it may be unlawful if an employer can’t prove it is specifically related to the requirements of the job. 

Since an arrest does not establish the occurrence of an actual crime, the new EEOC guidelines state that this isn’t reason enough to deny employment.  An employer must consider all of the relevant facts and allow the person a chance to explain before making an employment decision, and an arrest can’t be the sole reason for automatically weeding someone out of the hiring process. 

A conviction record, on the other hand, is considered sufficient evidence for confirmation of a particular conduct.  At the same time, the increased use in electronic background checks and the consequently higher error rates makes these less reliable than they have been in the past.  In part to compensate for possible mistakes, the EEOC says employers can't use conviction records as the sole basis for an employment decision either.

Essentially, the new EEOC guidance says that employers should consider applicants on a case-by-case basis and weigh criminal backgrounds based on seriousness and relevance to the job.  An arrest shouldn't be considered, and a conviction should be a red flag rather than an automatic disqualifier from the hiring process.  

Develop an effective policy that meets EEOC regulations

As with all employment related laws, it's important to establish a consistent policy for how your organization will handle criminal and background information.  Even a seemingly neutral policy may still disproportionately impact certain individuals (perhaps based on race or national origin) though, so the EEOC recommends developing a policy based on the following:

• Clearly state job requirements
• Thoroughly describe the job environment and any factors that would be affected by criminal background
• Keep a written list of specific offenses that are job-related
• Specify a time lapse where criminal conduct is relevant to the application
• Keep a record of why you established particular policies and procedures

To comply with EEOC guidelines, they state that companies should provide “an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”  In other words, when screening someone out based on a policy (especially with an automated system), there should still be someone responsible for making sure that it is being applied fairly.

Be sure to train your managers and recruiters on these new guidelines. For more information on this topic, visit the EEOC Questions and Answers section here.

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