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EEOC Lawyers Discuss Misconceptions, Guidance About Criminal History Checks

Tanisha Wilburn, senior attorney adviser at the commission’s Office of Legal Counsel, addressed three misconceptions that have emerged in the media at an event offered by the EEOC Training Institute. She stated that especially in editorials, about the guidance these misconceptions have been promulgated. For example, she challenged the notion that the agency is restricting employers from obtaining or using criminal records to screen its applicants and employees. She stressed that the guidance does not prohibit employers from using criminal history when making employment decisions. Another inaccurate interpretation about the guidance Wilburn said she has heard is that employers are required to hire job applicants with criminal records who are unsuitable for certain jobs. She said the guidance “does not require companies to hire anyone,” but simply “advises employers how they can avoid Title VII liability if they use applicants’ or employees’ criminal records to make employment decisions.” The third misconception she cited is that the policy imposes new Title VII requirements on employers. Applying Title VII analysis to the use of criminal records in employment decisions is well-established at the commission, according to Wilburn. In 1987 and 1990, the commission released three policy statements on this issue explaining the Title VII analysis, Wilburn said. “The truth of the matter is that the EEOC has been applying Title VII analysis to the use of criminal records for a long time.”

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