The EEOC recently issued a revised Title VII policy designed to guide employers more explicitly on hiring practices regarding individuals with criminal offenses. Enacted with the Civil Rights Act of 1964, Title VII meant to provide injunctive relief against discrimination. The concern about the recent decision entailed the agency’s potential to decree that pre-employment criminal background checks violated Title VII.
Understanding the new guidance
In brief, the EEOC began to re-evaluate its policy statements post the appeal of El v. Southeastern Pennsylvania Transportation Authority in 2007. Since then, stakeholders were requested to provide input toward the Commission’s information-gathering and decision.
While Title VII prohibits employers from discriminating between job applicants with the same criminal record with regard to race, national origin, color, religion or gender, and establishes procedures for employers to follow, it does not regulate an employer’s acquisition of criminal history for applicants.
Employers will need to consider relevant individualized evidence, such as:
- Circumstances surrounding the offense
- Number of offenses
- Age at time of conviction or release from prison
- If individual performed same type of work post conviction and incidents of criminal conduct
- Rehabilitation efforts
- Character references or relevant employment history, and
- If individual has been bonded
The Society for Human Resource Management (SHRM), which boasts over 260,000 members, stated that it considers criminal background checks appropriate as a tool to make responsible and informed hiring decisions. Further, SHRM interprets that the decision takes into account the different needs and concerns of every employer. According to SHRM, it appears the only conflict with the decision is the potential conflict this federal guidance may impose on state laws.
How does the new guidance affect career change or advancement?
The new guidance does provide a more in-depth analysis with which employers will need to become familiar.
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