EEOC issues new background check guidelines for employers

El v. Southeastern Pennsylvania Transportation Authority said the EEOC’s guidelines were “not entitled to great deference” because they did not “substantively analyze the statute.” At a meeting in July 2011, the EEOC commissioners discussed options such as barring employers from asking about old convictions, or prohibiting questions about criminal history on an initial job application (though the topic could still be broached in an interview). Business groups opposed such measures, and in the end, the EEOC did not include them in the guidelines. Another issue is what should happen when an employer learns that a prospective employee has a prior conviction. The EEOC determined it was a best practice — but not a requirement — for an employer to conduct an individualized assessment, to verify the information is correct and give the applicant a chance to explain the circumstances. The guidelines also note that that Title VII of the Civil Rights Act preempts state and local laws that impose lifetime bans on employing people with long-ago convictions that bear no relation to their job performance and behavior today, according to the Lawyers’ Committee for Civil Rights Under Law. “No longer will persons with criminal histories be permanently excluded from the workforce,” said Ray McClain, director of the Lawyers’ Committee’s Employment Discrimination Project. The guidelines consolidate three separate policy documents, two from 1987 and one from 1990, as well as incorporating more recent agency advisory opinions. Source: National Law Journal]]>

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