Federal law does not clearly prohibit an employer from asking about arrest and conviction records in the pre-employment or employment context. However, the Equal Employment Opportunity Commission issued enforcement guidance on an employer's use of arrest and conviction records for making employment decisions.
According to recent statistics, there has been a significant increase in the number of Americans who have had contact with the criminal justice system over the last 20 years and, therefore, an increase in the number of people with criminal records in the working-age population. Statistics also show that arrest and incarceration rates are higher for for African American and Hispanic men compared to the general population.
The EEOC is concerned that an employer's use of an individual's criminal history in making employment decisions may, in some cases, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. The EEOC is specifically focused on employment discrimination based on race and national origin, creating a disparate impact result. An employer’s hiring policy that is neutral on its face (for example, excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job-related and consistent with business necessity.
The guidance suggests that if a criminal background is discovered during a pre-employment check, the employer should consider the nature of the crime, the time since the conviction or release from incarceration, and the nature of the job, along with an opportunity for an individualized assessment for people excluded by the background check to determine if the background check policy is job related and consistent with business necessity.
The guidance also addresses the difference between arrest and conviction. An arrest, without subsequent conviction, may not necessarily establish that prior criminal conduct occurred.
The EEOC recommends that employers refrain from asking about convictions on job applications and if an employer does ask about convictions, the questions be limited to convictions that would be related to the job, consistent with business necessity. The EEOC guidance is considered a recommendation, and not a requirement. Employers may wish to review their Employment Screening Policies to see if they remain in line with the new EEOC guidance.