Are you required to provide past arrest information?

Title VII does not prohibit an employer from requiring applicants or
employees to provide this type of information. The EEOC today issued an
updated Enforcement Guidance on employer use of arrest and conviction
records in employment decisions under Title VII. An arrest record standing alone
may not be used to deny an employment opportunity, as an arrest does not
necessarily establish that criminal conduct has occurred. Many arrests do not
result in criminal charges, or the charges are dismissed. However, an employer
may make an employment decision based on the conduct underlying the arrest if
the conduct makes the individual unfit for the position. A conviction will usually
serve as sufficient evidence that a person engaged in particular conduct but
inquiries should not be made on job applications and should be made later in the
selection process. The conviction inquiry should also be limited to convictions for
which exclusion would be job related for the position in question and consistent
with business necessity.

An employer may still violate Title VII if the applicant or employee was
treated differently by the employer because of race, national origin or another
protected basis. For example, there is Title VII disparate treatment liability where
an employer rejected an African American applicant based on his criminal record
but hired a similarly situated White applicant with a comparable criminal record.
Title VII also prohibits decisions “infected by stereotyped thinking.” An
employer’s decision to reject an applicant based on racial or ethnic stereotypes
about criminality is unlawful.

An employer is also liable for violating Title VII where the employer’s
criminal record screening policy or practice disproportionately screens out a
protected group and the employer does not demonstrate that the policy or
practice is job related for the positions in question and consistent with business
necessity.

To show business necessity under Title VII, an employer needs to show
that the policy operates to effectively link specific criminal conduct, and its
dangers, with the risks inherent in the duties of a particular position. Generally, a
policy or practice requiring an automatic, across-the-board exclusion from all
employment opportunities because of any criminal conduct is not permitted
because it does not focus on the dangers of particular crimes and the risks in
particular positions. The Court has stated, “we cannot conceive of any business
necessity that would automatically place every individual convicted of any
offense, except a minor traffic offense, in the permanent ranks of the
unemployed.”

Certain individuals with specific convictions in certain industries or
positions in both the public and private sectors are governed by federal laws and
regulations which Title VII does not preempt. For example, federal law excludes
an individual who was convicted in the previous ten years of specified crimes
from working as a security screener or otherwise having unescorted access to
the secure areas of an airport. There are equivalent requirements for federal law
enforcement officers, child care workers in federal agencies or facilities, bank
employees, and port workers. Title VII does not preempt federal statutes and
regulations that govern eligibility for occupational licenses and registrations,
covering the transportation industry, the financial industry and import/export
industries.

What can an employer do to ensure compliance with Title VII?

- Eliminate policies or practices that exclude people from employment
based on any criminal record.

- Train managers, hiring officials, and decisionmakers about Title VII and
its prohibition on employment discrimination.

- Develop a narrowly tailored written policy and procedure for screening
applicants and employees for criminal conduct.

- When asking questions about criminal records, limit inquiries to records
for which exclusion would be job related for the position in question and
consistent with business necessity.

- Keep information about applicants’ and employees’ criminal records
confidential.

EEOC Enforcement Guidance No. 915.002