On Wednesday, April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance regarding the use of criminal conviction and arrest records in employment decisions. The EEOC has had a long-standing policy that, unless job-related and justified by business necessity, a policy or practice of denying employment because an applicant has a criminal record violates Title VII. The new enforcement guidance, however, emphasizes EEOC’s presumption that consideration of a criminal history is unlawful, and undoubtedly illustrates the increased scrutiny under which EEOC will review criminal background check policies. Click here to view the new guidance on the EEOC’s website.

Technically, the new guidelines do not establish new rules. Instead, they aim to clarify the standards first established by the EEOC in 1987. Additionally, the guidelines provide several examples of policies that meet the “job-related” and “business necessity” standard promulgated by the EEOC. Through those examples, as well as through the guidance itself, EEOC places a heavy emphasis on the importance of making an individualized assessment with respect to any applicant with a criminal background. The EEOC states that an individualized assessment is not required in every case. Nevertheless, the examples provided beg the question of whether even a narrowly targeted policy that takes into consideration the type of job, length of time since the conviction, and nature of the crime could ever pass scrutiny if the employer does not consider the circumstances surrounding each case individually. Although the EEOC admits that Title VII (and the EEOC’s enforcement through the new guidance) does not trump federal laws or regulations prohibiting some employers in certain industries from hiring individuals with particular criminal histories, the EEOC claims that it does preempt state law. Thus, even if an employer has a criminal background check policy that is dictated by state law, the EEOC takes the position that the employer is not shielded from liability if the policy runs afoul of the EEOC guidance.

The basis for the EEOC’s guidance is the Commission’s position that the use of criminal background checks in employment decisions has an adverse impact on African-American and Hispanic job applicants. The guidance cites research showing that African Americans and Hispanics also are arrested and incarcerated at rates disproportionate to their numbers in the general population. For example, in 2001, the U.S. Department of Justice estimated that 1 out of every 17 White men (5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, while the rate for Hispanic men is 1 in 6 (or 17.2%) and the rate for African American men is 1 in 3 (or 32.2%).

The EEOC’s guidance was adopted following two years of review and a 4-1 vote in favor of the guidance. The lone dissenter was Commissioner Constance S. Barker. Ms. Barker claims that the guidance will negatively affect business owners, did not undergo an appropriate public comment process, and goes outside the jurisdiction of the EEOC.

Earlier this year, Pepsi Beverages agreed to pay $3.13 million and provide job offers and training to settle a charge of race discrimination filed by the EEOC based on the company’s use of criminal histories to screen applicants. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense. The EEOC’s new guidance confirms that “arrests are not proof of criminal conduct” and may not be sufficient to exclude a candidate. They also emphasize that employers should consider the “nature of the crime, the time elapsed, and the nature of the job.”

Employers can expect continued administrative charges and lawsuits by EEOC attacking criminal background check policies, and should take the opportunity now to review existing policies in light of the EEOC’s new guidance.