Legislation and Compliance Update: EEOC Issues Guidance on Employers' Use of Criminal History in Employment Decisions

The Equal Employment Opportunities Commission has issued new enforcement guidance on employers' use of criminal history in employment decisions. The Commission adopted the new guidance by a vote of 4 to 1 on April 25. The new guidance and related documents are available on the EEOC's website at:

·         EEOC Press Release;

·         Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1984 (html);

·         Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1984 (pdf), and

·         Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.

Industry and legal commentary on the new guidance has generally found that the guidance does not prohibit employers use of criminal history and does not pose severe barriers. Thus far, commentary notes that employers will need to review their policies and processes and raises concerns about potential conflicts between state laws and the EEOC guidance. These commentaries include:

·         Commentary from a Human Resources Executive;

·         Detailed Commentary from Seyfarth Shaw;

·         Society for Human Resource Management Regulatory Alert, and

·         Commentary from the Society for Human Resource Management.