EEOC Issues Updated Enforcement Guidance Regarding Employer’s Use of Arrest and Conviction Records in Making Employment Decisions

An April 2012 Equal Employment Opportunity Commission (EEOC) ruled that employers risk violating the 1964 Civil Rights Act by considering the job applicant's past arrest or criminal conviction record, since blacks and Hispanics are more likely than whites or Asians to have run afoul of the law. The underlying principle is disparate impact -- if a policy disproportionally hurts blacks or Hispanics, it could point to unfair discrimination. The EEOC recommends "that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."
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