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EEOC issues new guidance on the use of criminal records to make employment decisions

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued updated Enforcement Guidance titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The EEOC updated its guidance in this area because, during the twenty years since it first issued guidance on this issue, employers have gained easier access to criminal records through new technology. Also, at least one court has suggested that the EEOC update its guidance. The guidance explains how an employer can discriminate against an employee or applicant on the basis of his race or ethnicity if it misuses criminal history information.

Nationally, African Americans and Hispanics are arrested and incarcerated in numbers disproportionate to their representation in the general population. Thus, employers who rely on criminal records to make hiring decisions are more likely to screen out African Americans and Hispanics than whites. As such, caution is warranted when using criminal records to make hiring decisions. If an employer does not comply with the EEOC’s guidance on the use of these criminal records, it risks violating Title VII of the Civil Rights Act.

If you are African American or Hispanic and an employer has deprived you of a job opportunity because of your criminal history, you should contact an experienced employment lawyer to learn more about your rights.

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