On August 25, 2012, the Equal Employment Opportunity Commission issued new guidance on the use of criminal background checks in employment decisions.

The EEOC’s updated policy acknowledges that having a criminal record is not a protected class under Title VII. Nevertheless, the Commission asserts that excluding applicants based on a criminal record has a disparate impact based on race and national origin, subjecting employers to Title VII liability. The new policy urges employers to “eliminate policies or practices that exclude people from employment based on any criminal records.” To the extent employers do exclude individuals based on criminal records, convictions must be job related and consistent with business necessity (excluding applicants on the basis of mere “arrests” was suspect and ill-advised even before this recent EEOC guidance). The EEOC also advises employers to consider a number of other factors including the nature and gravity of the offense or conduct, the time that has passed since the offense, and the nature of the job held or sought. The guidelines also recommend that employers conduct individualized assessment of applicants including informing an individual that he or she may be excluded from a position because of past criminal conduct; providing the individual an opportunity to demonstrate that the exclusion does not properly apply to him or her; and considering whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

This new guidance has the potential to effect your background check policies and procedures. We have analyzed the guidance, and can provide assistance to clients seeking to understand this guidance going forward.

This alert is for information purposes only and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information or an explanation about the matters discussed in this alert, please contact one of the attorneys listed above.