On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance on criminal background check policies. This guidance serves as a warning to private sector employers that they can be exposed to substantial liability if they do not carefully tailor the use of arrest and criminal conviction records in making hiring and other employment-related decisions. The guidance is not based on any new legal principles and, in fact, is a consolidation of court decisions and the EEOC’s prior policy statements over the last 20 years. The EEOC’s concern is that African Americans and Latinos are disproportionately incarcerated at "rates [two] to [three] times their proportion of the general population[,]" and that they suffer racial discrimination when companies use automatic, across-the-board exclusions based on criminal conduct.
Indeed, the guidance does not have the strength and effect of statute, regulation or force of law. In the courts, it is entitled to only Skidmore deference, Skidmore v. Swift Co., 323 U.S. 134, 140 (1994), under which EEOC guidelines "get[] deference in accordance with the thoroughness of [their] research and the persuasiveness of [their] reasoning." El v. SEPTA, 479 F.3d 232, 244 (3d Cir. 2007) (citing EEOC v. Arab Am. Oil Co., 499 U.S. 244, 257 (1991)). That being said, no employer wants the EEOC knocking at its door. Employers will likely take its recommendations very seriously rather than become a test case.
