For decades, the Equal Employment Opportunity Commission (EEOC), the government agency that administers most federal anti-discrimination laws, has held that considering a record of arrests that do not result in convictions is inherently discriminatory. The EEOC’s reasoning is based upon statistical findings that African-Americans and Hispanics are arrested more frequently than Whites. For this reason, consideration of arrest records has a “disparate impact” on these minorities even if employers have no intent to discriminate.

The EEOC is now extending this logic to consideration of conviction records in hiring decisions. In April 2012, the Agency issued an enforcement guide entitled “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII.” The thrust of the policy is to hold use of criminal background checks to be discriminatory unless an employer can show that its practice is “job-related and consistent with business necessity.”

The EEOC’s latest policy requires an “individualized assessment” of the applicant’s background. In making such as assessment, the following factors should be taken into account:

• The nature and gravity of the offense;
• The number of offenses;
• The time that has passed since the conviction or completion of the sentence;
• The applicant’s age at the time of conviction or completion of the sentence;
• The nature of the job for which application is being made;
• The applicant’s employment history both before and after the conviction or completion of the sentence;
• The applicant’s history of rehabilitation; and
• References regarding the applicant’s fitness for the job for which application is being made.

In other words, the applicant’s criminal conviction must be relevant to the job. For example, a children’s day care center need not hire a convicted pedophile and a bank need not hire a convicted embezzler. Their prior conduct is extremely relevant to the jobs they are seeking. On the other hand, a minor drug possession conviction is probably not relevant to most jobs.

Employers in the building service industry have special concerns. We need to protect our customers and employees from persons who pose a threat in the workplace. Workers who clean buildings often perform their duties alone and at night. Because immediate supervision is not always present, convictions for crimes involving violence, such as assault, or crimes involving dishonesty, such as larceny, are probably relevant. We use the cautionary term “probably” because other facts, such as when the conviction occurred and what the applicant has been doing afterwards, must be considered.

The EEOC is determined to show that it means business when enforcing this new policy. Within the last month, it has filed two federal lawsuits against companies that require all employees to submit to criminal background checks and disqualify most applicants with any history of convictions.

In this new and evolving area of law, it is extremely important for employers to work with qualified employment counsel to craft policies that will satisfy the EEOC and avoid costly lawsuits.

Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.