The U.S. Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance for criminal background checks for employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC states it is "not changing its fundamental positions on Title VII and criminal record exclusions with this new Guidance." However, it is important to note that this "enforcement guide" assumes that an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII.

According to the EEOC guidance document, there are two ways an employer's use of criminal history information may violate Title VII ("disparate treatment discrimination"):

1) Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, gender, or national origin.

2) Even where employers apply criminal record exclusions uniformly (where the employer has a "neutral policy" - excluding applicants from employment based on certain criminal conduct), the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin ("disparate impact discrimination"). If the employer does not show that the exclusion is "job related and consistent with business necessity"for the position in question, the exclusion is unlawful under Title VII.

Members should review this new guidance with their hiring staff and consult counsel if appropriate.

NLBMDA has prepared an issue briefing which can be downloaded here.

The EEOC guidance document may be accessed here.

The EEOC Q&A on the new guidance is available here.