It is not a new development in employment law that many employers take into account an applicant’s or employee’s criminal history information, including arrests or convictions, when making employment decisions. Nor is it unprecedented for the federal Equal Employment Opportunity Commission (EEOC) to come out with policies and guidance on the subject.

But in light of technological changes that have made criminal background checks easier to do, the passage of the Civil Rights Act of 1991, which codified the “disparate impact” theory of liability, and even some prodding from a federal court of appeals, the EEOC has recently issued an updated Guidance on employers’ use of criminal background checks in employment decisions under Title VII of the Civil Rights Act of 1964.

Title VII does not directly regulate or speak to the acquisition of criminal history information. (Some state employment discrimination laws, however, give protections to individuals concerning inquiries by employers about criminal histories.) Still, there are two ways in which an employer’s use of criminal history information can violate Title VII.

The first theory, called “disparate treatment” discrimination, occurs when an employer treats job applicants with the same criminal records differently because of one of the prohibited bases for discrimination in Title VII: race, color, religion, sex, or national origin.

The second concept, known as “disparate impact” discrimination, refers to the situation in which an employer applies criminal record information to its employment decisions uniformly, but the exclusions still operate to disproportionately exclude people of a particular race or national origin. Under this second theory, the employer can be found liable for discrimination unless it can show that the application of the criminal history information is “job related and consistent with business necessity” for the position in question.

The new Guidance is the culmination of the EEOC’s examination of a wide array of information. However, there are no substantial changes in the EEOC’s positions on the fundamental issues raised by employer use of criminal background data. These EEOC policies are unchanged:

1. An arrest alone does not establish that criminal conduct has occurred, although an employer may act based on evidence of conduct that disqualifies an individual for a particular job.
2. Convictions, on the other hand, are considered reliable evidence that a crime was committed.
3. Nationally, studies show that exclusions from employment due to criminal histories have a disparate impact on the basis of race and national origin, prompting the EEOC to investigate charges of this kind.
4. A blanket policy of excluding every person with a criminal record from employment, unless such exclusion is required by other federal law, will not satisfy Title VII’s requirement that the application of criminal history information be job related and consistent with business necessity.

The legality of an employer’s use of criminal histories is highly dependent on the facts of a particular decision, making it difficult to generalize. Still, the Guidance includes the following nonexhaustive list of some “best practices” for employers considering criminal record information when making employment decisions:

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
• Keep information about applicants’ and employees’ criminal records confidential. Use it only for the purpose for which it was intended.