Impact of Revised EEOC Criminal Record Guidelines

Impact of Revised EEOC Criminal Record Guidelines

Under Title VII of the Civil Rights Act, it is illegal for employers to discriminate against job applicants based on race, color, religion, sex, or national origin.  The EEOC (Equal Employment Opportunity Commission) ensures that these rights are upheld in the employment market.

The EEOC recently introduced new guidelines in April 2012 regarding the use of criminal record while making hiring decisions. The new guidelines surpass EEOC’s policy statements from 1987 and 1990. Even though the laws against discrimination have not changed, it is important for employers to understand how the guidelines will impact hiring policies. Some of the common violations of Title VII, that have been recorded, occur when different candidates with similar criminal records get treated differently by an employer or when even after uniform application of the law, there is a different impact on candidates of specific ethnic groups.

The new guidelines will help mitigate such circumstances, which state that the criminal record policy should be “job related and consistent with business necessity.”  This can be made possible when employers avoid blanket rejections for applicants with criminal records. Instead, employers should develop a targeted screening procedure and assess each candidate individually by looking for details like nature of the crime committed, time when it was committed, nature of the job in question, etc. The guidelines also require employers to provide applicants an opportunity to contest that the screening policy is not properly applied to him/her.

To ensure that the hiring policies are in compliance with the new guidelines, listed below are some of the best practices provided by EEOC, which say that an employer should

  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Create a structured procedure and narrowly tailored written policy for screening applicants and employees for past criminal conduct.
    • Identify the key requirements for the job and the real circumstances under which the job will be performed.
    • Elaborate on specific criminal acts that will be found inappropriate for the particular job.
    • Determine the duration of exclusions for criminal conduct based on available information
  • Never ask for criminal background information on applications. Such inquiries, if any, should be limited to convictions that are related to the job being applied for
  • Train the people involved in the hiring process as to how they can comply with the policies made according to the Title VII.
  • Create a detailed report justifying the policies and procedures, including details about the research that went into creating these policies.
  • Keep information related to criminal records of applicants and employees confidential.

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