In an informal (and nonbinding) advisory opinion letter, the EEOC has shed some light on its views of employers using arrest and conviction records in making initial hiring decisions.
Although it does not set forth any strict standards, and is not binding, it does contain some helpful guidance:
- When using automatic exclusions for criminal convictions, employers must ensure the conviction is both recent enough and sufficiently job-related to be predictive in determining whether it will impact the applicant’s performance
- Arrest records that don’t result in convictions should be examined more closely and treated differently that conviction records
The basic thrust of the EEOC’s position is that applicants’ arrest and conviction records should be job-related and their use indiscriminately applied.