While Title VII of the Civil Rights Act of 1964, as amended does not prohibit an employer from requiring that an employee or applicant seeking employment provide information about arrests and convictions, use of such information in employment decisions may violate the prohibition against discrimination.
The EEOC has recently issued updated guidance to employers on the use of these records when making employment decisions. (This information will be available on the EEOC's website at www.eeoc.gov.) Whether the employer searches an individual's criminal background itself or relies on a third party agency to provide information, in general, employers are interested in this information because of increased concern about workplace violence, liability for negligent hiring, theft and fraud. While having a criminal record is not a protected category under Title VII like race, color, religion sex and national origin are, the manner in which the employer uses the record may become part of a claim of employment discrimination based on those protected categories.
For instance, if the employer makes derogatory statements about an employee or applicant's protected group, this might be used as evidence of bias and that the bias played a role in an employment decision. Additionally, if the employer is inconsistent in its request or use of the criminal background information by asking for it more often from individuals with certain racial backgrounds or allowing some employees or applicants to explain the information and not others, the inconsistency can be evidence of employment discrimination either in the hiring or evaluation process.
Employers are advised to review their policies and practices to determine whether they have a greater impact on a group protected by Title VII than other employee's or applicants. Employers should train managers and those who make employment-related decisions on best practices when making such decisions. A narrowly tailored written policy and procedure for reviewing applications for employment should be developed, and managers need to be trained on the implementation of such policies and procedures so that they are consistent with Title VII. Employers are reminded that, if they collect applicants' and employees' criminal records, to keep this information confidential.