On October 27, 2015, New York City adopted a so-called “ban the box” law, titled the Fair Chance Act, that severely restricts what employers can ask during the hiring process. Specifically, the Fair Chance Act prohibits most employers from inquiring about an applicant’s criminal record until after the employer extends a conditional offer of employment.
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.Continue Reading EEOC “New” Guidance on Arrest and Conviction Records