Metz Lewis Brodman Must O'Keefe

Metz Lewis Brodman Must O'Keefe

Posted on January 23, 2013

The federal Equal Employment Opportunity Commission (“EEOC”) has recently issued guidelines regarding pre-employment inquiries pertaining to arrests and convictions.  The EEOC’s new guidelines on criminal background checks do not preclude an employer from asking applicants about criminal charges and convictions.  However, with regard to arrests without convictions, the EEOC emphasizes that the employer should not assume that the applicant actually committed the offense.  Rather, the employer should allow the applicant an opportunity to explain the circumstances of the arrest and should then make a reasonable effort to determine the reliability of that explanation.  Also, even if the employer believes that the applicant has engaged in the conduct in question, the employer should only use the information to deny employment if it is evident that the applicant cannot be trusted to perform the duties of the job when considering the following:

  • The nature of the job
  • The nature and seriousness of the offense
  • The length of time since it occurred.

The EEOC recommends that employers conduct the same analysis with regard to convictions.  Thus, even in the case of a conviction, if the crime in question does not relate to the job to be performed or is remote in time, it puts the employer at risk of a potential discrimination claim (if the applicant is in a protected class) if the employer uses the conviction as the basis not to hire the applicant.

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