EEOC Begins Enforcing 2012 Criminal Background Check Guidance

EEOC sues two employers for race discrimination for using criminal background checks to exclude applicants without also making "individualized assessment" of other factors.

In April 2012, the Equal Employment Opportunity Commission (EEOC or Commission) published a new guidance document updating its earlier position on the use by employers of arrest records and criminal background checks as part of the pre-employment screening process. (The Schnader Alert discussing the guidance document is available here.)

As we observed then, unlike the EEOC's view on the use of arrest records, its 2012 guidance document does not posit that employers may never use criminal background checks without violating Title VII — a position that would be unsustainable. The guidance instead cautioned employers against a black and white rule broadly excluding for all positions all applicants who were convicted of a felony in the past, regardless of how long ago and irrespective of