THE LITTLER REPORT: CRIMINAL BACKGROUND CHECKS: Evolution of the EEOC’s Updated Guidance and Implications

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Table of Contents:

I. EXECUTIVE SUMMARY 1

II. USE OF CRIMINAL RECORD CHECKS IN EMPLOYMENT 3

A. Use of Criminal Record Checks by Employers 3

B. Role of Title VII in Use of Criminal Records 4

III. THE EEOC’S APRIL 2012 UPDATED GUIDANCE ON CRIMINAL RECORDS 6

A. Overview 6

B. Disparate Treatment 6

C. Disparate Impact Claims 7

D. Relationship to Federal and State Laws and Regulations 13

E. The EEOC’s Employer Best Practices 15

IV. THE ROAD TO THE UPDATED GUIDANCE—A REVIEW OF THE EEOC’S PRIOR POLICY STATEMENTS ON CRIMINAL RECORDS, RECENT CASE LAW AND OTHER DEVELOPMENTS 17

A. A Review of EEOC’s Prior Policy Statements and Guidance on Use of Criminal Records 17

B. Impact of Third Circuit’s Decision in El v. SEPTA 21

C. Other Recent Developments Supporting Ex-Offenders 23

V. EEOC MEETINGS INVOLVING CRIMINAL RECORDS 24

A. November 2008 Commission Meeting Focusing on Criminal Records 24

B. The Subsequent July 26, 2011 Commission Meeting on Criminal Records 29

VI. IMPACT OF THE EEOC’S SYSTEMIC INITIATIVE ON USE OF CRIMINAL RECORDS BY EMPLOYERS AND NOTEWORTHY LITIGATION 37

A. Significant Systemic Investigations 37

B. Noteworthy Litigation Involving Criminal Records 38

VII. PRACTICAL COMPLIANCE ISSUES DEALING WITH CRIMINAL RECORDS 40

A. State Law Restrictions 40

B. Restrictions in Hiring Individuals with Criminal Records 44

C. Negligent Hiring 47

D. FCRA and Related Compliance Issues 48

VIII. CONCLUSION 49

Excerpt from Report:

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) finally issued its "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (hereinafter "Updated Guidance") concerning the use of criminal records by employers. The EEOC issued the Updated Guidance "on the heels" of its January 2012 announcement of a $3.1 million settlement with an employer following the EEOC's finding that the employer allegedly screened out more than 300 African American job applicants due to their criminal records. Based on the EEOC's systemic initiative, the EEOC also has been intensively scrutinizing the criminal records screening policies used by employers in many different industries, including motor carriers, retailers and manufacturers. A flurry of new EEOC charges and similarly broad investigations by the Commission is virtually certain in the next 12 to 24 months. These developments set the stage for employers to closely review their hiring policies involving the consideration of criminal records in order to assess potential Title VII risk and opportunities to meaningfully reduce that risk without compromising other legitimate and even compelling business interests.

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