EEOC Guidance on Consideration of Arrest and Conviction Records in Hiring Decisions

This guidance—an outgrowth of the highly criticized “disparate impact” theory of racial discrimination—threatens employers with lawsuits and liability for using criminal background checks in the hiring process if EEOC believes that it is not necessary for the employers’ business needs. It puts businesses in a catch-22: if they try to protect their customers from criminals they risk a discrimination lawsuit, but if they don’t they can be liable for negligently hiring a dangerous or dishonest employee and lose reputation and business. Although EEOC has been enforcing this rule against businesses for five years, it has never submitted the rule to Congress. Therefore, the rule has never legally gone into effect, should not be enforced, and remains eligible for congressional review.

The guidance is here: https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Criticism of the rule:  http://www.wlf.org/upload/legalstudies/legalbackgrounder/050914LB_Morris.pdf

PLF amicus brief on this rule: http://blog.pacificlegal.org/wp/wp-content/uploads/2014/04/PLF-AC-Brief.pdf