Employment and Labor Law

By: David C. Burton & Reba Mendoza
Williams Mullen (North Carolina and Virginia, USA)

On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC” or the “Commission”) approved new guidelines regarding the use of criminal records in employment-related decisions.

  This comes on the heels of increasing access to criminal records, and the corresponding use of this information by employers in employment-related decisions.  The guidelines recognize that an employer’s consideration of an individual’s criminal history in employment-related decisions may violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  Title VII prohibits employment discrimination only on the basis of race, religion, sex, and national origin.  The possession of a criminal record is not an expressly protected characteristic under Title VII; however, the consideration of criminal records in employment-related decisions runs afoul of Title VII when it is used to support the disparate treatment of applicants or employees on the basis of a protected characteristic, or when it has a disparate impact on members of a protected class and is not supported by business necessity.  This is not a new position, but the guidance provides greater detail regarding these claims and associated defenses. Click here to read entire article.