By:  Judge Ruth B. Kraft, Esq.

In April, 2012, the Equal Employment Opportunity Commission (EEOC) issued a new Guidance focusing on how employers should use arrest and conviction records in making employment decisions.  Criminal and arrest records are not specifically protected under Title VII of the Civil Rights Act or any other federal discrimination statutes.  However, the EEOC has taken the position that employers should not even ask about arrest records because of the adverse impact such inquiries can have in excluding minority applicants.  Even conviction records must be handled with care to ensure that their use does not exclude minorities from job opportunities disproportionately.

The EEOC takes the position that an arrest record is not prima facie evidence of criminal conduct and that use of such a record to exclude an applicant from employment has been statistically shown to disportionately affect minorities since its analysis has demonstrated that members of minority groups are arrested at a higher rate than whites.  However, the EEOC has now acknowledged that an employer may make an employment decision based on the underlying conduct if it makes the individual unfit for the position in question.  It is the conduct, not the arrest, which is material and relevant for employment purposes.  For example, a black worker is arrested for sexually assaulting a woman in his the workplace and is discharged after the employer’s investigation reached the conclusion that he had behaved inappropriately.  Under the EEOC guidance, this termination is not discriminatory even though the employee may be able to show that taking action based on the arrest could have a disparate impact on him based on his national origin.  The key element is that the employer acted based upon its own investigation and not simply on the fact of an arrest.

The EEOC distinguishes a criminal record from an arrest record in that the conviction indicates that an individual was found beyond the shadow of a doubt to have engaged in illegal behavior.  It has conceded that employers may have legitimate reasons to inquire about criminal convictions but has opined that Title VII issues may still arise if these inquiries lead to the disportionate exclusion of applicants from protected classes.  Therefore, employers must be able to show their reason for excluding an applicant based on a conviction record that is job related and consistent with business necessity.  The three factors used by the EEOC are the nature of the crime, the time elapsed and the nature of the job; this provides an opportunity for what the EEOC refers to as an individualized assessment.  Such an assessment may consider the facts and circumstances surrounding the offense, the number of offenses, the age at time of conviction or release, evidence that the applicant performed similar work post-conviction with no known incidents of criminal conduct, the length and consistency of the employment history pre and post offense, rehabilitation, character references regarding fitness for the position and whether the individual is bonded.  For example, an employer might well be within its rights to reject an otherwise qualified job candidate for the position of burglar alarm installer or repairman if he has a record of conviction for burglary.  

Any policy or practice which automatically excludes an individual from all employment opportunities because of any criminal conduct whatsoever is inconsistent with the EEOC’s position because it does not focus on the dangers of a particular crime and the risks in particular positions.   

For additional information on this topic or assistance with policies and procedures contact Jennifer Kirschenbaum at or at (516) 747-6700 x. 302.