The "new" guidance — accessible at http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm — reinforces longstanding EEOC policy prohibiting employers from using arrest and conviction records to exclude individuals from employment. More recently, the EEOC has expanded enforcement efforts to include prohibitions on employer policies that exclude candidates from employment because of criminal history, arrests, and convictions. That is because such policies adversely affect or have a "disparate impact" on minority populations that have statistically higher arrest and conviction rates. The disparate impact analysis has long been used to combat race discrimination in the workplace. The "takeaway" messages for employers are in the EEOC’s specific recommendations and stated limitations on how and when criminal background information can be used. Starters are that it must be a conviction, not an arrest, and the conviction must be for an offense related to the job in question, often a tough analysis for employers. The conviction must be relatively recent in time and be of a sufficient gravity to create legitimate concern by the employer.
There are also specific recommendations on how employers should use background check information . See at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. One EEOC recommendation is that employers should not use policies with blanket exclusions based on criminal records, and that applications should no longer include requests for criminal history. The EEOC further recommends that employers meet with candidates and give them the opportunity to explain or refute the findings of the background check. While the guidelines are not regulations, they send a clear message to employers on where the EEOC will be focusing its investigation and enforcement efforts. It also creates a cumbersome, time-consuming process for employers to evaluate criminal background records in possible, if not probable, conflict with policies to protect the security of employees, customers, and the business as a whole. Such policies, at a minimum, grow out of an employer’s duty under laws such as the Occupational Safety and Health Act (OSHA) to provide employees with a safe workplace.