07.31.2012Author: James Bucci, Esq. and Lauren Marcus, Esq. View the article (pdf) The federal Equal Employment Opportunity Commission ("EEOC") recently issued enforcement guidance ("Guidance") on employers' use of criminal records in making hiring and employment decisions. Prudent employers should be aware of the EEOC's position and how it affects their applications, interviews, background checks and employment decision-making process. In the Guidance the EEOC sets forth its position, based on its own statistical study, that an across-the-board ban on hiring persons with criminal records results in a disparate impact on the bases of race and national origin. The EEOC has thus determined that in order for an employer to be able to properly consider an applicant's criminal history in making a hiring/employment decision, the employer needs to be able to demonstrate that: (1) the inquiry is job related; and (2) the decision not to hire someone with a criminal record is based on a business necessity. Although not required, the EEOC strongly recommends in the Guidance that employers engage in an "individual assessment" for candidates screened out by background checks, and afford the applicant an opportunity to provide additional information about his or her criminal history.