Yesterday the EEOC issued its updated guidance on the use of arrest and conviction records in employment related decisions. The new guidance does not fundamentally change the EEOC's position, but it does provide more in depth analysis incorporating case law and statutory developments, sociological and criminal research and other information regarding the use of criminal records in employment decisions. While the updated guidance is rather lengthy, among the significant changes in the updated guidance are:
- Discusses application of disparate impact principles related to the use of qualifications and criminal records
- Explains how EEOC analyzes the "job related and consistent with business necessity" standard for excluding applicants or employees with criminal records and gives hypothetical examples
- States that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provides a defense to a Title VII claim
- Provides that state and local laws or regulations are preempted by Title VII if they "purport to require or permit the doing of any act which would be an unlawful employment practice" under Title VII
- Provides "best practices" for employers to consider when making employment related decisions based on criminal records
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