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New EEOC Guidance on Treatment of Arrests and Convictions in Hiring

I have written about this issue several times before, but now the EEOC has issued a new Enforcement Guidance addressing the use of arrest and conviction records in hiring. Its Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 narrows the circumstances under which applicants can be excluded based on arrest or conviction records.

The most significant change in the EEOC’s new Guidance is that it places a higher burden on employers to prove that use of arrest or conviction records is “job related and consistent with business necessity.” As a result, employers should conduct an individualized inquiry into the circumstances surrounding each applicant’s arrest or conviction record, and then consider whether not hiring the individual based on that record is consistent with business necessity.

I continue to counsel employers to focus on conviction, not arrest, records, because it is much easier to defend decisions made on that basis.

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