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May 17, 2012

Criminal Background Checks: Evolution of the EEOC's Updated Guidance and Implications for the Employer Community

Authors: Barry Hartstein, Rod Fliegel, Marcy McGovern, and Jennifer Mora
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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) finally issued its "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964" (hereinafter "Updated Guidance") concerning the use of criminal records by employers. The EEOC issued the Updated Guidance "on the heels" of its January 2012 announcement of a $3.1 million settlement with an employer following the EEOC's finding that the employer allegedly screened out more than 300 African American job applicants due to their criminal records. Based on the EEOC's systemic initiative, the EEOC also has been intensively scrutinizing the criminal records screening policies used by employers in many different industries, including motor carriers, retailers and manufacturers. A flurry of new EEOC charges and similarly broad investigations by the Commission is virtually certain in the next 12 to 24 months. These developments set the stage for employers to closely review their hiring policies involving the consideration of criminal records in order to assess potential Title VII risk and opportunities to meaningfully reduce that risk without compromising other legitimate and even compelling business interests.

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