If you are considering using arrest or conviction records to aid in your hiring decisions, do not do so without a reason connecting the offense to the job, and without the input of employment counsel versed on these issues. The EEOC’s guidance prohibits employers from implementing broad-based blanket exclusions on any individuals with an arrest or criminal history. Instead, it provides that the consideration of criminal convictions requires a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity. In addition, the EEOC issued its Draft Strategic Plan for Fiscal Years 2012 – 2016, which provides that the identification, investigation, and litigation of systemic discrimination cases—pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area—is a top strategic priority for the agency. The EEOC continues to take a long, hard look at hiring practices—such as the use of arrest and conviction records—because of their potential adverse impact against African Americans and Hispanics.
