Title VII of the Civil Rights Act of 1964 prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex or national origin (disparate treatment). When an employer uses criminal record exclusions uniformly, its actions may nonetheless disproportionately and unjustifiably exclude people of a particular race or national origin (disparate impact). If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

According to the Equal Employment Opportunity Commission (EEOC), the new Enforcement Guidance essentially recognizes only two circumstances under which an employer can establish that its criminal background inquiry is job related and consistent with business necessity. An employer now has two choices if it wishes to consider conviction records when making employment decisions. It can validate the appropriateness of a criminal screen using the Uniform Guidelines on Employee Selection Procedures—a complex statistical process that is likely to be a burden for the average employer. Alternatively, it can develop a “targeted screen” that considers the nature of the crime, the amount of time elapsed since the conduct or conviction at issue, and the nature of the job in question. Employers choosing this approach must also provide applicants or employees who may be excluded from employment an opportunity to present mitigating information (for example, demonstrating that the conviction record does not belong to the applicant). While Title VII does not require such an assessment in all circumstances, the EEOC maintains that a screening process that does not utilize such an inquiry is more likely to the law.

This should serve as a warning to all employees who find themselves rejected from employment because of a criminal conviction, whether the disqualification is automatic once a conviction is discovered or occurs only following a determination that the conviction relates to the position in question. This does not mean, however, that employers cannot ask about convictions or run criminal background checks (provided all the requirements of the Fair Credit Reporting Act and various state laws are met), but rather that they may choose to wait until later in the application process, perhaps until after the initial screen or once a final slate of candidates has been identified. And when a conviction record is revealed, employers should carefully assess the nature of each position being filled and determine whether the conviction at issue is reasonably related to the particular position, such that it should be a dis-qualifier.