On April 25, 2012, the U.S. Equal Employment Opportunity Commission issued updated enforcement guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The updated Guidance supersedes the Commission’s previous guidance on the issue and discusses how employer use of criminal background information may subject employers to Title VII liability. Although Title VII does not regulate employer’s use of criminal records, the Commission finds that the misuse of criminal records may violate Title VII’s prohibition against discrimination based on race or national origin...

A covered employer is subject to Title VII liability for intentional discrimination or disparate impact discrimination. An employer can be found liable for intentional discrimination, for example, if it denies an African American employment based on his or her criminal record, yet hires a similarly situated Caucasian applicant with a comparable criminal record. Similarly, an employer can be found liable for disparate impact liability if it adopts a neutral policy or practice that excludes all applicants that have been arrested for drug offenses in the last 10 years because a policy of this nature will disproportionately exclude certain minority groups.

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