The Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws, has recently taken two steps to broaden the scope of enforcement of Title VII of the Civil Rights Act of 1964. First, the EEOC has issued updated guidance regarding how employers may use arrest and conviction records to make legally permissible employment decisions under Title VII. Second, the EEOC has determined that transgender individuals are covered by Title VII’s prohibition against “sex” discrimination.
Updated EEOC Enforcement Guidance Regarding Criminal Background Checks
In furtherance of its efforts to eradicate the more covert forms of discrimination often associated with criminal background check policies, the EEOC has issued a revised Enforcement Guidance on the Consideration of Arrests and Conviction Records in Employment Decisions (“Guidance”) that signals more aggressive oversight in this area. The EEOC’s Guidance explains how an employer’s use of arrest and conviction records can violate Title VII, under theories of either disparate treatment or disparate impact. According to national criminal history data, criminal background checks may have a disproportionate impact on racial minorities. Thus, while a criminal background check policy may appear racially neutral on its face, it may create a “disparate impact” on a protected group and therefore violate Title VII. The updated Guidance provides hypothetical examples of how employer practices may create disparate treatment and disparate impact liability under Title VII, and concludes with a list of recommended “best practices” for avoiding such exposure.
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