The EEOC Continues to Regulate Employers’ Use of Criminal Records

The Equal Employment Opportunity Commission (EEOC) recently held a meeting regarding protections for job applicants with arrest and conviction records under Title VII of the Civil Rights Act of 1964 and has indicated that it will not update its 1987 Policy Statement on the Issue of Conviction Records under Title VII. Since 1987, the EEOC has taken the position that, if an employer's conviction-based screening policy causes a disparate impact, the employer must show that it considered: (1) the "nature and gravity" of the applicant's offense; (2) the "time that has passed since the conviction and/or completion of sentence;" and (3) the "nature of the job held or sought." The issue of whether the EEOC should change its position was raised by a recent Third Circuit Court of Appeals decision which held that if an employer's conviction-based screening policy in fact causes a disparate impact, the employer must produce "empirical evidence" justifying its screening policy in order to establish business necessity. El v. South Eastern Pennsylvania Transportation Authority (SEPTA), 479 F.3d 232 (3rd Cir. 2007). While the EEOC has maintained its position on this matter, employers should continue to monitor the law in this area in the event that the EEOC changes its views or there are developments at the state level.