On April 25 of this year, the U.S. Equal Employment Opportunity Commission (EEOC) came out with a new ruling on enforcing the “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.” In short, it is updating how employers consider arrest and conviction records when making employment decisions. Inside Counsel Magazine says: The guidance cautions that employers may violate Title VII through:

• Disparate treatment of people with comparable criminal histories
• Disparate impact on individuals of a certain race, national origin or other protected class caused by the application of facially neutral criminal history policies, if the employer cannot show a business necessity for a job-related exclusion

It focuses on the differences between arrest and conviction records. In as much as an arrest doesn’t mean criminal conduct, a conviction record is something completely different with most employers. This is where it gets tricky. The EEOC revised ruling was supposed to make the background check process clearer for employers, helping them avoid costly violations. But many are still confused.  What can and can’t you do?

An employer should NOT ask about convictions unless they are clearly job related.  This is critical.  As an example, if your applicant was convicted of a DUI eight years ago, would you hire him/her as a forklift operator?  If your bookkeeper applicant was arrested, convicted of embezzlement, served time and is now back in the market, would you hire this person?

Check your employment application and internal background check policies to ensure which inquiries are appropriate.  At the end of the day, the EEOC stresses not to assess applicants based on this information alone. Companies still need to provide justification for using this information.  The EEOC provides three factors for assessing criminal background:  the nature of the offence and its severity, the time (months/years) that has passed since the conviction (or completion of his/her sentence), and the nature of the job. 

The HR department should alert Recruiters and Hiring Managers on the new ruling and eliminate any past policies that would not comply. Especially interview practices which would exclude those based on an applicant’s criminal record. Ensure the job description actually has identified the job function and how the job is to be performed. Determine if any offenses would preclude someone from the job.  When you really take a look at the job responsibilities, what offense would actually be considered not acceptable? 

For more information: www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

Mary Claire Ryan is a Partner with inTalent Consulting Group