In April 2012, the EEOC issued a statement regarding an employer's use of arrest and conviction records of potential employees. Employers can still use and obtain this information when making hiring decisions; however, the information cannot be used in a discriminatory manner.
This is not the first time the EEOC has addressed this issue. The issue has been of concern to the EEOC since at least 1969, when the EEOC investigated complaints regarding the use of criminal records. Also, the EEOC has issued policy statements on the same topic in 1987 and 1990, as well as addressed it in other areas.
Potential employees have always been protected from discrimination based on their arrest records, but with new technological advances it has become much easier to find the criminal records of potential employees. The EEOC wants to make sure that these records are not being used inappropriately. The EEOC asked for input from various community members before issuing the statement.
Employers cannot treat two potential employees or current employees with the same criminal record differently. This is called disparate treatment, and it is against the law. This not only protects people with criminal records but also applies to race, national origin, sex and other protected classes.
The other type of prohibited discrimination is called disparate impact discrimination. If excluding people with criminal records from employment disproportionately affects people of a certain national origin or race, the employer must show that excluding all people with criminal records is "job related and consistent with business necessity."
It is not difficult for an employer to show that the exclusion is job-related. Employers must show that they at least considered the nature of the crime committed, the nature of the job denied and how long it has been since the crime was committed. The employer must also give potential employees the chance to tell their side of the story.
Employers who are concerned about hiring policies should contact an employment law attorney. An attorney can evaluate your current hiring practices and make sure that your company has policies put in place that will protect against employment discrimination claims by employees.