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EEOC: Employers may not automatically deny employment based on criminal record

The EEOC updated its guidance regarding how criminal records can be used by employers in hiring decisions.  The EEOC reaffirmed that – in some instances – an employer’s use of an individual’s criminal records when making employment decisions will violate Title VII’s ban on employment discrimination.

A company’s policy of excluding job applicants from employment based on certain felonies or misdemeanors may disproportionately impact certain individuals protected under Title VII by unfairly affecting particular races or national origins.  Such a policy would be illegal if unless the employer can show that it is both:  1) job related; and 2) consistent with business necessity.

The EEOC made clear that employers would be well served to consider:  a) the nature of the crime; b) the time elapsed; and c) the nature of the job.  By doing so, employers can make an individualized assessment to make sure that their policy is job related and necessary for their business as applied to particular job applicants.