Pamela Devata Quoted in BNA Human Resources Report
"EEOC Updates Enforcement Guidance on Employers' Use of Criminal Histories"

Seyfarth Shaw Labor & Employment attorney Pamela Devata was extensively quoted in a BNA Human Resources Report article on April 30. The article discussed the Equal Employment Opportunity Commission's (EEOC) approved, updated enforcement guidance on potential discrimination resulting from the use of arrest and conviction records by employers in the hiring and other employment decisions process.

"It's not binding guidance, however, employers would be wise to least be knowledgeable about the guidance and evaluate their policies and processes regarding the use of criminal history," Pam noted. "It's clear the EEOC guidance is going to inform EEOC investigators and may give rise to a larger number of investigations based on the use of criminal history."

The article notes the concern over individualized assessment. Pam said that the EEOC's view that a criminal background screen that does not include individualized assessment is more likely to violate Title VII could cause problems for employers, as conducting these assessments are "tremendously burdensome and logistically difficult," as they would entail "talking to the applicant and giving the applicant or employee the opportunity to provide additional evidence and/or do their own investigation."

With the new guidance, employers now must further limit the information they seek about an applicant's arrest and conviction records. She said, "Current practice for many employers is to request any and all criminal history they can legally obtain and do an analysis of that information." She added, "What the EEOC guidance seems to say is employers should only request information that is job-related…Practically speaking, that is going to be challenging on a position-by-position basis."