Last week, the EEOC issued a new guidance on criminal background checks.

So, what’s it all mean? Here are the highlights …

When does it go into effect? Immediately.

What is it exactly? Basically, it’s a summary of the EEOC’s long-standing position that employer use of arrest and conviction records could result in race and national origin discrimination.

What’s the main focus? The EEOC acknowledges that 92% of employers use criminal background checks and that the practice doesn’t necessarily violate Title VII. However, it emphasizes that discrimination could happen in two main situations:

  • Disparate treatment: when employers treat criminal history differently for different applicants based on race or national origin.
  • Disparate impact: when seemingly neutral background check practices disproportionately impact protected classes.

What does an employer have to prove? Once the EEOC establishes disparate impact, the employer must show that the practice is “job-related and consistent with business necessity.” Here’s what the Guidance says that means:

  • An arrest alone isn’t sufficient to meet the test.
  • The employer should use a “targeted screen” that considers three main factors: (1) the nature of the offense, (2) the time since the offense and (3) the nature of the job.
  • Notice should be provided to the individual under scrutiny.
  • An “individualized assessment” should be conducted for those excluded by the screening process.
  • An employer could also potentially meet the test through a rather cumbersome process that includes validating each position utilizing the Uniform Guidelines on Employee Selection Procedures and its statistical models to demonstrate a link between criminal conduct and job performance.

Are “individualized assessments” always required? The EEOC states that Title VII “does not necessarily require individualized assessment in all circumstances.” However, it also says that “the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants.” Potential topics to consider in the assessment include (1) circumstances surrounding the offense, (2) post-conviction work performed by the applicant and (3) references or other information provided by the applicant.

What about job applications? The Guidelines include a “best practice” recommending that inquiries about convictions be excluded from applications.

Can non-applicants sue? Yes. The Guidance recognizes that individuals who don’t apply for employment could file suit based if they were “discouraged from applying” due to an employer’s reputation for excluding convicts.

Is manager training required? The Guidance recommend a “best practice” of training managers and those who make hiring decisions on how to avoid discrimination when considering criminal records.

How seriously do we have to take the Guidance? The Guidance is just that — guidance. It isn’t a law or regulation. While courts may defer to the Guidance in deciding a particular case, they aren’t required to. That said, the EEOC will certainly consider the Guidance in assessing individual cases filed with the agency.

The bottom line: I highly recommend that you review the Guidance with your favorite employment lawyer and think deeeep thoughts about whether you need to revise your existing policies and procedures in this area.