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EEOC Issues Updated Enforcement Guidance on Employers’ Consideration of Arrest and Conviction Record

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (the “Guidance”).  The Guidance, effective immediately, summarizes the EEOC’s long-held position that an employer’s reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin.  The Guidance also contains significant changes in certain areas that are important to many employers.  While courts defer to the EEOC’s published guidances to some extent, an EEOC guidance is not controlling on courts’ interpretation of Title VII and is not entitled to the high level of deference given to federal regulations.  Employers can expect courts and litigants to refer to the EEOC’s interpretations set forth in the Guidance.  While the use of criminal records is not prohibited, the updated Guidance raises significant questions for employers, given the EEOC’s strong encouragement for employers to conduct an “individualized assessment” of each potentially disqualified ex-offender applicant or employee. More…