September 01, 2013 Criminal Justice

Using Criminal History in Hiring Decisions

Jon D. Bible

Roughly 20 years ago the Equal Employment Opportunity Commission (EEOC) enacted guidelines on how employers could comply with Title VII in using criminal history information when making a hiring decision. In April 2012 the EEOC published new Enforcement Guidance (the Guidance) focusing on race and national origin discrimination, the Title VII protected classes that the EEOC has decided are most often implicated in the use of criminal history in employment decisions.

Arrest records. Even today it is not unusual for an application form to ask if an applicant has ever been arrested on a criminal charge. The Guidance, however, states, “The fact of an arrest does not establish that criminal conduct has occurred. Arrests are not proof of criminal conduct. . . . Even if an individual is charged and subsequently prosecuted, he is presumed innocent until proven guilty. . . . Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.” The Guidance adds than an arrest “may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action.” It counsels employers to make a fact-based analysis of this issue.

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