On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions, addressing both disparate treatment and disparate impact discrimination based on criminal background checks.

EEOC noted that “[w]hile Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion or sex.”  Noting that national data existed that criminal record exclusions have a disparate impact based on race and national origin, EEOC’s recently-issued guidance focused on employment discrimination based on these factors and explained how such discrimination could arise:  (1) a Title VII violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability); and (2) an employer’s neutral policy (i.e., excluding applicants from employment based upon certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job-related and consistent with business necessity (disparate impact liability).

EEOC noted that, in disparate impact cases, an employer will be able to meet the “job-related and consistent with business necessity defense” when it is able to show that its policy “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”  Two circumstances where EEOC believes this standard will be “consistently met” are when:  (1) the employer validates the criminal conduct exclusion using EEOC’s Uniform Guidelines on Employee Protection Procedures (designed to provide a framework for employers by setting forth the acceptable use of testing and other selection procedures); and (2) the employer develops a targeted screen that considers the nature of the crime, the time elapsed since the crime was committed, and the nature of the job – and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy, as applied, is job-related and consistent with business necessity.  Although Title VII does not require individualized assessment, the guidance notes that the use of such assessment can help employers avoid Title VII liability.

In addition to this EEOC guidance, New York employers should recall that they must comply with New York Correction Law Article 23-A, which prohibits “unfair discrimination against persons previously convicted of one or more criminal offenses.”  Under Correction Law § 752, an employer cannot deny employment to an individual convicted of a crime unless (1) there is a direct relationship between one or more of the previous offenses and the specific employment sought; and (2) the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.