The New EEOC Guidance: The Sky Isn’t Falling

On April 25th, the Equal Employment Opportunity Commission issued new “enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.”

This is the first guidance on this topic issued by the EEOC in more than 20 years. It reflects the EEOC’s recent litigation trend of trying to limit employers’ use of criminal records in making employment decisions. Much of the new guidance reflects the policy considerations suggested in my Background Checks Under Fire presentations to SHRM chapters and webinar audiences.

However, the new guidance suggests several more restrictive items, including:

  • “Ban the box” – a suggestion that employers remove criminal history inquiries from the employment application and not make such inquiries until the applicant is being interviewed or even later in the process.
  • An interpretation of Title VII suggesting that employers create very job-specific (as opposed to job-category) guidelines identifying which kinds of criminal offense are directly applicable to a particular position.
  • A requirement that the employer conduct “individualized assessments” of most applicants whose criminal histories may eliminate them from consideration for employment. This would mean that employers would discuss the results of the background check with the applicant before making the hiring decision.

However, although the guidance suggests new policies for employers, it is important for employers to understand that little has really changed, despite much of what has been published in the media. (Remember that lawyers who speak to the media often give very generic and conservative advice.) The EEOC is not a rule-making entity – they can only bring civil cases against employers they believe to be in violation of the laws they enforce.  Title VII of the Civil Rights Act of 1964 has not changed.

Employers run background checks for specific reasons (and none of them are prurient):

  • To protect the public from the consequences of the wrong person in the wrong job.
  • To protect their own employees from the consequences of the wrong person in the wrong job.
  • To protect the company’s assets from the consequences of the wrong person in the wrong job.
  • To protect the company’s reputation from the consequences of the wrong person in the wrong job.

Failures to protect against the consequences of the wrong person in the wrong job cost employers and society in many ways. In the worst situations, lives are lost or individuals are hurt. Expensive litigation often follows.

Employers should understand the ramifications of the new guidance on their operations’ safety and performance before making changes to their current policy. In fact, many employers who already have sound policies in compliance with long-standing EEOC guidelines may decide not to make any changes in light of the new guidance.

I conducted a webinar to go through the new guidelines last Friday. There were a lot of good questions and follow up conversations. In preparing the webinar, I visited with some really smart human resources professionals (including Terri Swain at The HR Consultant, who specializes in EEOC, affirmative action, and OFCCP issues), employment law attorneys, and my background screening industry peers. I’ve concluded that the sky isn’t falling but employers do need to make informed decisions about how they respond to the new guidance.

I’ve scheduled two additional webinars for the next two Mondays (April 30th and May 7th). The webinar will likely continue to evolve as great minds share their thoughts with me. I hope you’ll find time to be a part of that conversation. (There’s also free HRCI recertification credit in it for you, too.)

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