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EEOC looking at discriminatory effects of employers’ use of arrest and conviction records to screen applicants

On July 26, 2011, the Equal Employment Opportunity Commission (EEOC) will hold a public hearing that addresses the issue of “Arrest and Conviction Records as a Barrier to Employment.” Dating back to the 1980s and early 1990s, the EEOC (which is a federal agency that enforces employment discrimination laws) has warned employers about screening applicants based on arrest and conviction records. It is well-known that law enforcement authorities and courts disproportionately arrest and convict racial minorities. Regardless of whether these arrests and convictions are legitimate, it is unlawful under the Civil Rights Act for employers to use policies that screen out racial minority applicants at a far greater rate than white applicants unless (a) it can demonstrate that it has a valid business justification to use the records to screen applicants and (b) there is not a less discriminatory way to meet the business need that justifies the use of the records. Thus, if an employer uses arrest or conviction records to screen applicants, it may violate the law unless it complies with these conditions. The EEOC’s hearing will address this issue again and that could lead to further guidance for employers on this issue.