EEOC Guidelines on Using Criminal History in Hiring

Why the EEOC Cares About Background Checks

The Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws, including Title VII of the Civil Rights Act. The EEOC has found that blanket policies excluding anyone with a criminal record have a disparate impact on Black and Hispanic applicants, who are arrested and convicted at higher rates than white applicants — a documented outcome of systemic inequities in the criminal justice system.

A policy that is neutral on its face (we don't hire anyone with a felony) can still be unlawful if it disproportionately screens out a protected class and cannot be shown to be job-related and consistent with business necessity.

The EEOC's 2012 Guidance

The EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions provides the framework most employers should follow:

1. Arrest Records Alone Are Not Enough

An arrest is not proof of wrongdoing. The EEOC says employers should not use an arrest record — standing alone — as a reason to deny employment. However, employers can consider the conduct underlying an arrest even if no conviction resulted, as long as it is evaluated in context.

2. Conduct Individualized Assessments for Convictions

When a criminal conviction could be relevant to a position, the EEOC recommends considering at least three factors:

• The nature and gravity of the offense: A violent felony is different from a misdemeanor possession charge
• The time elapsed since the offense: An offense from 15 years ago carries different weight than one from last year
• The nature of the job sought: A financial fraud conviction is directly relevant to a bookkeeping role; it may not be relevant to a landscaping position

3. Give the Candidate a Chance to Respond

Before taking adverse action based on criminal history, give the candidate an opportunity to explain the circumstances — whether the record is accurate, whether there are mitigating factors, or whether evidence of rehabilitation exists.

Targeted Screens vs. Blanket Exclusions

The EEOC distinguishes between targeted screens — which are job-related and applied consistently — and blanket exclusions. Blanket exclusions (no one with a DUI, no one with any felony) are likely to draw EEOC scrutiny. Targeted screens (no one with a felony conviction for fraud in the past 7 years applying for a role with financial responsibility) are more defensible.

Practical Steps for Employers

1. Eliminate blanket "no criminal record" policies
2. Define which convictions are relevant to which roles, with a documented rationale
3. Train hiring managers on the individualized assessment process
4. Document every hiring decision where criminal history was a factor
5. Apply the same criteria consistently across all candidates for a given role

At Do It Right Screening, we help employers build defensible, EEOC-compliant screening programs. Contact us for a review of your current approach.