EEOC Guidelines on Arrests & Convictions Discrimination: Compliance and Implications

By Douglas Lipsky

New York City’s “ban the box” law prohibiting arrests and convictions employment discrimination follows the Equal Employment Opportunity Commission (EEOC) guidelines on such practices. These guidelines play a vital role in shaping fair and equitable hiring practices and giving candidates with criminal records a fair chance at a fresh start. This blog is an overview of the EEOC’s guidelines and the necessary steps for compliance.

Preventing Arrests and Convictions Discrimination in the Workplace

The EEOC guidelines on arrests and convictions are designed to prevent discrimination against job applicants and employees based on their criminal history. These guidelines stem from the understanding that such discrimination can disproportionately affect certain racial or ethnic groups, thereby violating Title VII of the Civil Rights Act of 1964. The EEOC emphasizes that employers should not have blanket policies that exclude individuals with arrest or conviction records but rather should assess each situation individually.

The guidelines significantly impact the hiring process, particularly in how employers conduct background checks and evaluate candidates with arrest or conviction records. Employers are encouraged to reassess their hiring policies to ensure they don’t unfairly exclude individuals based on their criminal history. This requires a shift from a blanket exclusion policy to a more nuanced approach, where each candidate’s background is considered in the context of the job they’re applying for. 

Best practices for employers to comply with EEOC guidelines include:

  • Evaluating the specifics of an applicant’s criminal record in relation to the job duties.
  • Considering the nature and gravity of the offense and how it relates to the position.
  • Factoring in the amount of time that has passed since the offense or completion of the sentence.

Implementing these practices ensures compliance with EEOC guidelines and demonstrates an employer’s commitment to fair and inclusive hiring practices, enhancing their reputation and potentially benefiting from a more diverse and experienced workforce.

Legal Implications For Employers

Failure to adhere to these guidelines can result in legal consequences, including:

  • Discrimination lawsuits – Employers may face discrimination lawsuits from individuals who believe they were unfairly denied employment or were subjected to adverse employment actions based on their criminal history.
  • Financial penalties – Violating these guidelines can lead to fines and penalties imposed by regulatory authorities, which can be costly for employers.
  • Reputational damage – A reputation for discriminatory hiring practices can harm an employer’s brand and make it less attractive to potential employees and customers.
  • Loss of talent – Unjustly excluding individuals with criminal records can result in missing out on valuable talent and diversity in the workforce.

Critically, employers may be subject to EEOC investigations, which can be time-consuming and resource-intensive. 

Protections Against Arrests and Convictions Discrimination

The EEOC guidelines on arrests and convictions discrimination provide essential rights and protections for employees and job applicants:

  • Individuals have the right to be assessed based on their qualifications and abilities, rather than being unfairly dismissed solely due to past arrests or convictions.
  • Employers should provide candidates an opportunity to explain their criminal history and provide context.
  • Employees who assert their rights by reporting discrimination or participating in related proceedings are protected against retaliation by their employers.

Being aware of these protections can help ensure employees and candidates are treated fairly during the hiring process and in the workplace.

The Takeaway

The EEOC guidelines on arrests and convictions provide a framework for mitigating employment discrimination. The best way for employers and employees to understand their rights and obligations is to consult a knowledgeable employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.