Yesterday, the EEOC issued a new Enforcement Guidance on use of arrest and conviction records in hiring decisions.  Among other things, the Guidance addresses best practices for employers who use criminal background information in hiring decisions.

The Guidance has already been covered in detail by many of our fellow bloggers.  For more information, check out Dan Schwartz’s post on the Connecticut Employment Law Blog.  Also check out Jon Hyman’s post on his Ohio Employer’s Law Blog.  If you’d like to read the Guidance itself, download it here.

We’ll leave you with Section VIII, the “Best Practices” section of the Guidance, which we think is helpful:


  • Eliminate policies or practices that exclude people from employment based on any criminal record.
  • Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.

Developing a Policy

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.  Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.  Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
  • Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

  • When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.


  • Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.