EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII: Use of Conviction Records
December 6, 2012
This is in response to your letter to the United States Equal Employment Opportunity Commission (EEOC) that was received in the Office of Legal Counsel on November 21, 2012. You expressed interest in the EEOC’s April 2012 guidance on the legality of employers considering a conviction record in an employment decision under Title VII of the Civil Rights Act of 1964.
The Commission enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII). Title VII prohibits employment discrimination on the bases of race, color, sex, religion, and national origin. Consideration of conviction records in employment decisions may raise issues under Title VII if an employer’s reliance on conviction records disproportionately excludes members of a protected class. Disqualifying applicants on the basis of conviction records has been found to disproportionately exclude African-Americans and Hispanics.
Conviction records may be considered in an employment decision as evidence of conduct that makes an individual unsuitable for a particular position. However, where African-Americans or Hispanics (or any other protected group) are disproportionately excluded from employment, the employer must demonstrate that it considers the relationship of the crime to the position sought. Specifically, among other relevant factors, an employer must consider:
If an employer says you will not be hired because of a criminal record, the EEOC’s position is that you should have an opportunity to provide more facts to the employer. For example, tell the employer about successful employment or participation in job training programs, and also about any support you may have in the community that could help you succeed in the job. Also, if there are errors in your criminal record, you should inform the employer. You may contact the local law enforcement agencies that would have access to your criminal record for a copy.
After your release, if you seek employment and believe that you have been discriminated against, you may file a charge with the EEOC. You may call 1-800-669-4000 to locate the EEOC field office nearest to you. You may also contact the EEOC’s website at www.eeoc.gov for additional information. For your information, we have attached the following guidance:
Also, New York law provides protection for individuals with criminal records. For additional information, you may contact:
New York State Division of Human Rights
One Fordham Plaza, 4th Floor
New York, NY 10458
New York City Commission on Human Rights
40 Rector Street - 10th Floor
New York, NY 10006
Finally, the U.S. Bureau of Prisons has ex-offender employment resources that may be helpful to you, available at http://www.bop.gov/inmate_programs/itb_references.jsp.
We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b).
Carol R. Miaskoff
Assistant Legal Counsel
This page was last modified on January 10, 2013.
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