By: Rudman Winchell Attorney Anne-Marie Storey

On April 26, the EEOC issued regulations addressing an employer’s use of arrest/conviction records during the hiring process.

As you know, the EEOC has long taken the position that disqualifying an applicant based on an arrest or conviction could violate Title VII (and the MHRA) on the basis of race or other protected category, depending on how the information is used and whether it is used consistently.

The Guidance warns of the disproportionate arrest and conviction rate for certain races and finds that this discrepancy provides a basis for the EEOC to investigate an employer’s use of criminal records. It states that ordinarily reliance on an arrest is not job-related and consistent with business necessity because it does not establish that the conduct occurred.

However, it recognizes that an employer may make a hiring decision based on the conduct that led to the arrest if it can show that conduct renders the applicant unfit for the position applied for. It further recognizes that a conviction record will ordinarily be sufficient proof that the underlying conduct occurred, but it further warns that in some situations employers should not rely on that alone.

If a disproportionate impact is shown, the employer must show that its reliance on the information is job-related and consistent with business necessity. This is fairly consistent with how the EEOC has previously been viewing these types of claims. The Regulations do now offer some suggestions as to how to meet this standard. An employer should be able to show that it considered the nature of the crime, the time elapsed, and the nature of the job. The employer must also provide an opportunity for “an individualized assessment of those people identified by the screen to determine if the policy as applied is job related and consistent with business necessity” by eliminating an automatic exclusion based on either arrest or conviction record and instead adopting “narrowly tailored” policies that provide for targeted, individualized screening of specific offenses depending on the job’s essential functions.

The Regulations encourage employers to maintain records supporting the justification and research that supports whatever policy it adopts for the individualized assessment.

This new information should be factored into each employer’s policies and procedures involving the hiring and interviewing process.

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