The Equal Employment Opportunity Commission has issued updated guidance concerning employer use of criminal histories.  As many as 92 percent of employers use criminal background checks as part of their hiring processes. 

The EEOC’s updated guidance generally provides that the EEOC will regard as suspect blanket or automatic exclusions of individuals from employment or promotion simply based on an individual’s criminal record, particularly when the individual is an African American or a Hispanic male.  However, the EEOC indicates that it will accept as a defense to a statutory discrimination claim an employer’s showing that the exclusion is job-related and consistent with business necessity and that the employer has made an individualized determination that hiring or promoting the individual in question would be likely to create a risk of improper conduct that would be detrimental to the employer’s business or workplace.  Specifically, the guidance indicates that, in making individualized assessments, employers should consider the following three factors:

1. The nature and gravity of the offense or conduct;
2. The time that has passed since the offense or conduct and/or completion of the sentence; and
3. The nature of the job held or sought.

The EEOC warns against employer’s relying on arrest records per se as a disqualifying factors. 

Separately, Senators Richard Blumenthal (D-CT) and Chuck Schumer (D-NY) have called on the EEOC to investigate whether information obtained by employers through social networking and email sites may be used to unlawfully discriminate against otherwise qualified applicants.  Congress and a number of state legislators―including those in Maryland, Illinois, and California―are considering legislation that would prevent prospective and current employers from requesting access to employee social networking accounts.