Using arrest and conviction records as a basis for employment decisions may violate Title VII if employers fail to take certain precautionary measures, according to the Equal Employment Opportunity Commission's latest enforcement guidance, which was released on April 25, 2012. The new guidance consolidates and clarifies prior EEOC guidance in light of judicial decisions on the use of arrest and conviction records.
The guidance begins by making the obvious point that the selective use of arrest and conviction records may constitute disparate treatment discrimination in violation of Title VII. For example, an employer that disqualifies an African American based on a prior drug conviction, but is more lenient toward a white candidate with a similar criminal record, would likely be in violation of Title VII.
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