On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued a memorandum outlining its position on employer use of criminal records in the employment decision-making process. This new guidance both consolidates previous EEOC memorandums on the same issue and offers some new, expansive positions about what it considers to be potentially improper practices under Title VII. While the new guidance falls short of absolutely prohibiting the use of criminal background checks by employers, it is clear that employers with broad criminal background check policies may face EEOC scrutiny in the future.

The memorandum provides several important discussions that should be of interest to human resource professionals, including the standards applicable to disparate treatment claims and disparate impact claims. The memo also outlines the different standards applicable to arrest records as distinguished from conviction records and sets forth examples of employer conduct it would consider inappropriate. Finally, the memorandum sets forth what it considers to be “best practices” by employers who use criminal records.

Article authored by McAfee & Taft Attorney: Paul Ross.