May 2012

                                              

Last week, the EEOC provided new enforcement guidelines to be used for determining whether the use of arrest and conviction records is proper in the hiring process as it relates to Title VII.  There has been a fair amount of electronic ink spilled on this topic and I have identified some good sources below for review.

The take away from the article and new guidlines is  that employers cannot use arrest and conviction records with impunity.  Unfortunately, it seems counterintuitive that an employer could not disqualify a potential candidate based upon a conviction.  The EEOC seems to be saying that if that policy is not uniformly applied or if it has disparate impact, there could be ramifications against the employer. 

I understand the distinction the EEOC makes between conviction and arrest records, although arrests usually are the result of some underlying conduct that the employer should consider.  That said, it seems a little much that the EEOC is going out of its way to prepare these new guidelines and regulations with respect to convicted individuals.  I am all for rehabilitation, but ultimately, the employer should be able to eliminate job candidates based upon convictions, when that criteria is uniformly enforced. 

Below are some articles you might consider and the regulations from the EEOC:

Guidance from the EEOC –http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Q&A from the EEOC – http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

Connecticut Lawyer Daniel Schwartz on the Issue

Ohio Lawyer Jon Hyman’s Take

The Delaware Employment Law Blog Weighs In