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EEOC and Use of Criminal History Searches in the Employment Process

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June 11, 2012 Return to News & Events

EEOC and Use of Criminal History Searches in the Employment Process

On April 25, 2012 the Equal Employment Opportunity Commission released a new Enforcement Guidance pertaining to the use of Criminal Background Checks in a non-discriminatory manner. Recent news headlines have suggested that hiring practices are often used in a discriminatory fashion, specifically against racial groups that may have a higher incidence of incarceration.

The Guidance, titled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964," very specifically outlines its purpose, intentions, and, ultimately, guidelines to prevent discrimination based on hiring practices.

The opening bullet point in the summary weighs in on the enormity of the Enforcement Guidance document.

An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

Further in the document it is stated:

The Guidance focuses on employment discrimination based on race and national origin.

The entire Introduction to the Enforcement Guidance is a must read for all Human Resources Departments, hiring managers, and employment decision makers, but a specific passage stands out:

In the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system and, concomitantly, a major increase in the number of people with criminal records in the working-age population. In 1991, only 1.8% of the adult population had served time in prison. After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults). By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail. The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.
Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

Based on the aforementioned statistical data it is easy to see why the EEOC would want to update and present new Enforcement Guidance as related to the use of Criminal Records in the employment process. The ability to utilize these documents as a means of discrimination, either consciously or otherwise is very real.

The Enforcement Guidance further outlines various areas where Criminal History's may be used appropriately and concludes with an Employer Best Practices.

Overall it is a document that will have a broad reach and become widely impactful. Now, more than ever, it makes sense to work with a third party background screening company for all your employment screening needs. has the knowledge, skill, and ability to assist any company or organization in their background screening needs. They understand the legalities and regulations that impact the pre-employment vetting process. With Enforcement Guidance documents, such as the one discussed herein, let take care of the guesswork. Rely on a company that can provide understanding and compliance.

About is an Information Enterprises, Inc. Solution and is a national background checking site that specializes in criminal background checks. The site has been providing background checks to employers, schools, universities, landlords, individuals and other entities for over a decade and has active members in all 50-US States. Individual products consist of criminal background checks including county, state and national background checks, Eviction Checks both Statewide and National, Social Security number validation, address history traces, Federal court searches, driving records and professional verifications.
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