On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued an extensive document titled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (the “April 2012 Guidance”). Although the EEOC describes the April 2012 Guidance as an update, the accompanying EEOC Questions and Answers indicate that the Guidance actually expands the EEOC’s review of employers’ use of arrest/conviction information when EEOC Charges are brought alleging that an employer’s use of the information had a discriminatory effect (http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm).

Title VII and Employers’ Use of Arrest and Conviction Information

Title VII of the Civil Rights Act does not regulate an employer’s ability to gather applicant/employee criminal history background. Nevertheless, the EEOC takes the position that employers’ use of arrest or conviction information may be discriminatory, in two potential ways...

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