The EEOC’s recent enforcement guidance regarding employers’ use of criminal histories in employment decisions (the “Guidance”) appears to have one more foe: the U.S. House of Representatives. On May 10, 2012, the House passed an appropriation bill that would prohibit the use of EEOC funds for implementing, administering, or enforcing the Guidance. This prohibition echoes the criticism from the business community among others that the Guidance goes too far in restricting employers’ use of criminal histories.

The Guidance, entitled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” was published on April 25, 2012. Based upon recent legal, social, and criminological research, the Guidance strongly encourages employers to take a close look at any selection and retention policy that takes into account criminal histories. The Guidance suggests employers risk exposure due to the possibility that such policies may have a disparate impact on protected groups under Title VII. In such cases, an employer would have to explain how the policy is "job related and consistent with business necessity" (the "business necessity defense").

The Guidance identifies only two circumstances in which employers’ policies will “consistently meet” the requirements of the business necessity defense: (1) when the employers validate the policies under the Uniform Guidelines on Employee Selection Procedures or (2) when the policy includes a “targeted screen considering at least the nature of the crime, the time elapsed, . . . the nature of the job,” and also provides an opportunity for individualized assessment.

With respect to targeted screens, the EEOC sets forth some “best practices.” In relevant part these best practices state that criminal screening policies should (1) identify essential job requirements and the actual circumstances under which the jobs are performed; (2) determine the specific offenses that may demonstrate unfitness for performing such jobs; (3) determine the duration for exclusion from the particular job based upon all the evidence (including individual assessment); (4) record the policy’s justification; (5) keep records of consultations and research considered in crafting the policy; and (6) train employees in how to implement the policy.

Whether the House’s appropriation bill signals the beginning or end of pushback to the Guidance remains to be seen. Until the EEOC reassesses its position, however, the Guidance warrants the attention of employers wishing to consider criminal history in employment decisions. Such employers should consult with counsel in order to head off potential challenges to their use of criminal screening policies.

Enforcement Guidance

EEOC Q&A on Enforcement Guidance

H.R. 5326

Uniform Guidelines on Employee Selection Procedures