The EEOC guidance on criminal background checks requires employers to prove that excluding job applicants based on criminal history is “job-related and consistent with business necessity.” This means employers can’t use blanket policies that automatically disqualify anyone with a criminal record. Instead, they must consider three key factors: the nature and gravity of the offense, how much time has passed since the conviction or completion of the sentence, and the specific requirements of the job in question. Most importantly, employers must provide an individualized assessment, giving you a chance to explain your circumstances and demonstrate why your criminal history shouldn’t disqualify you from the position.
Key Takeaways
- EEOC background checks must be job-related and can’t create an unjustified disparate impact on protected groups
- Employers must consider the nature of the offense, time elapsed, and job requirements – not just whether you have a record
- You’re entitled to an individualized assessment where you can explain your circumstances and provide evidence of rehabilitation
- Blanket exclusion policies that reject all applicants with any criminal history violate federal employment law
- New York City’s Fair Chance Act provides even stronger protections, prohibiting criminal history questions until after a conditional job offer
- Criminal record discrimination often disproportionately affects Black and Hispanic job seekers, triggering Title VII protections
- After 7-10 years, most people with criminal records pose no greater employment risk than those without records
- You can file an EEOC complaint if an employer refuses to consider your individual circumstances
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
Why Does the EEOC Regulate Criminal Background Checks?
The Equal Employment Opportunity Commission regulates criminal background checks because these screening practices often create illegal discrimination through “disparate impact” – when a seemingly neutral policy disproportionately affects members of protected groups.
Here’s the reality: Black Americans make up 13% of the U.S. population but account for 28% of arrests and 38% of the incarcerated population. Hispanic Americans face similar disparities. These statistics mean that blanket criminal record exclusions screen out qualified Black and Hispanic candidates at much higher rates than white candidates.
Title VII of the Civil Rights Act doesn’t explicitly mention criminal records. But when employment policies create this kind of disparate impact based on race or national origin, employers must prove their policies serve a legitimate business necessity.
What Are the Core EEOC Requirements for Using Criminal Records?
Employers have two options to comply with the EEOC criminal history guidance. They can either validate their exclusion policies through empirical data (rarely done because it’s difficult and expensive) or use a targeted screening approach with individualized assessment.
The targeted screening approach requires employers to first develop a screen considering:
- The nature and gravity of the criminal offense
- The time that has passed since the offense or sentence completion
- The nature and requirements of the specific job
After this initial screening, employers must provide an individualized assessment for anyone potentially excluded. This means notifying you about potential exclusion, giving you a chance to explain why the exclusion shouldn’t apply, and considering any additional information you provide.
Best Practices Under the EEOC Guidance
The EEOC guidance provides several best practices for employers to ensure compliance with Title VII when using criminal background checks:
1. Eliminate Blanket Exclusion Policies
Avoid policies that automatically exclude all applicants with any criminal history. These blanket exclusions almost never meet the “job-related and consistent with business necessity” standard and typically create legally indefensible disparate impact.
2. Develop Narrowly Tailored Screening Procedures
Criminal record screenings should be tailored to specific job requirements and risks. This means:
- Identifying specific criminal offenses that may demonstrate unfitness for specific jobs
- Determining appropriate time limits for considering past criminal conduct
- Including an individualized assessment process to evaluate additional information
For example, a financial institution might reasonably consider recent fraud-related convictions for positions with access to customer funds, but should likely not consider old, non-financial offenses unrelated to the job duties.
3. Limit Inquiries to Job-Related Convictions
The EEOC recommends that employers not ask about convictions that are unrelated to the job in question. Questions should be limited to convictions that have a direct relationship to the position.
4. Consider Time Elapsed and Rehabilitation
Research consistently shows that the risk of recidivism decreases substantially over time. The EEOC guidance emphasizes that employers should consider:
- The length of time since the offense occurred
- Whether the person has maintained a clean record since then
- Evidence of rehabilitation, including education and steady employment
After a certain period (often 7-10 years), most returning citizens present no higher risk than individuals without criminal records. Policies that fail to account for this diminishing relevance over time may be difficult to justify as business necessities.
5. Train Managers and Hiring Personnel
Anyone involved in the hiring process should receive proper training on:
- How to implement criminal background check policies consistently
- How to conduct individualized assessments fairly
- The requirements for maintaining confidentiality of criminal records
- The prohibition against using criminal history information in a discriminatory manner
How Does Individualized Assessment Work?
Quick Answer: Individualized assessment gives you the opportunity to show why your criminal record shouldn’t disqualify you from a job by providing context, rehabilitation evidence, and character references.
When you’re flagged by an initial criminal background screen, the employer must give you a chance to provide additional information. You can submit evidence about:
- The circumstances surrounding your offense
- Your age at the time of conviction
- Evidence of rehabilitation (education, training, steady employment)
- Employment history before and after the offense
- Character references and recommendations
- Whether you’re bonded under federal or state programs
The employer must actually consider this information – they can’t just go through the motions. If they still decide to exclude you, they need documented, job-related reasons for that decision.
What Criminal Background Check Practices Are Illegal?
Several common employer practices violate EEOC guidance on criminal background checks:
Blanket exclusion policies that automatically disqualify anyone with any criminal record almost never meet legal standards. There’s no job where every type of criminal conviction, regardless of when it happened or what it involved, makes someone unfit for employment.
Lifetime bans for certain convictions ignore the well-documented fact that recidivism risk drops dramatically over time. Research shows that after 7-10 years, someone with a criminal record poses no greater risk than someone without one.
Arrest record exclusions are particularly problematic. Arrests without convictions can’t be used as automatic disqualifiers because arrests don’t prove someone actually engaged in criminal conduct.
How Do New York's Fair Chance Laws Add Extra Protection?
Quick Answer: New York City’s Fair Chance Act prohibits employers from even asking about criminal history until after making a conditional job offer, and requires a detailed written analysis if they want to withdraw that offer based on your record.
While EEOC guidance applies nationwide, New York provides additional protections. The NYC Fair Chance Act covers all employers with four or more employees and includes these key requirements:
Employers can’t ask about criminal history on applications or during interviews. They must wait until after making a conditional job offer. If they want to withdraw the offer based on your criminal record, they must provide:
- A written analysis of how your conviction relates to the job duties
- A copy of the background check report
- Time to respond (at least three business days)
- Written final determination with reasons
New York State Article 23-A adds another layer, listing specific factors employers must consider, including your rehabilitation efforts and the public policy of helping people with criminal records find employment.
What If You Work in a Regulated Industry?
Quick Answer: Some industries have mandatory background check requirements, but employers still can’t impose restrictions beyond what the law requires and must still provide individualized assessments for positions not covered by specific regulations.
Certain industries face specific legal requirements for employment background checks. Financial institutions covered by FDIC regulations must screen for certain financial crimes. Healthcare facilities must check exclusion lists. Schools must screen for crimes against children.
But here’s what many employers get wrong: industry-specific requirements don’t give them carte blanche to exclude anyone with any criminal record. They can only impose the specific exclusions required by law, and only for the positions covered by those requirements.
For positions not specifically regulated, employers must still follow EEOC criminal history guidance and provide individualized assessment. They can’t use industry regulations as an excuse for broader exclusions than the law requires.
How Should You Respond to Criminal Background Check Questions?
When applying for jobs, you’ll encounter different approaches to criminal history screening. In New York City and other “ban the box” jurisdictions, employers can’t ask about criminal history until after a conditional offer.
If you’re in a jurisdiction where early inquiries are allowed, only answer what’s specifically asked. If they ask about convictions, don’t volunteer information about arrests that didn’t lead to convictions. If they ask about felonies, don’t discuss misdemeanors.
Once you receive a conditional offer and face a background check, be prepared with:
- Accurate dates and dispositions of any convictions
- Documentation of rehabilitation efforts
- Character references from employers, teachers, or community leaders
- Certificates of relief from disabilities or good conduct, if you have them
What Evidence Helps in an Individualized Assessment?
Quick Answer: The strongest evidence includes completion certificates from rehabilitation programs, steady employment history, character references from credible sources, and documentation showing the conviction is unrelated to job requirements.
Not all evidence carries equal weight in an individualized assessment. Focus on providing:
Rehabilitation documentation: Certificates from substance abuse programs, anger management courses, or vocational training show concrete steps toward change.
Employment verification: Steady work history, especially in similar positions without incidents, demonstrates reliability and trustworthiness.
Educational achievements: Degrees, certifications, or training completed since your conviction show commitment to self-improvement.
Time passage documentation: If your conviction is old, emphasize your clean record since then. Include proof of community involvement, volunteer work, or family responsibilities you’ve maintained.
Professional references: Letters from previous employers, supervisors, or colleagues who can speak to your work ethic and character carry significant weight.
What Should You Do If You Face Discrimination?
Quick Answer: Document everything, request the employer’s criminal history policy in writing, file an EEOC complaint within 300 days, and consult with an employment background check lawyer who can evaluate whether you have a disparate impact claim.
If an employer denies you employment based on your criminal record without a proper individualized assessment, take these steps:
Document the process. Save all communications, job postings, and any written policies you receive. Note dates, times, and names of people you spoke with.
Request information. Ask for the employer’s criminal background check policy in writing. Under the Fair Credit Reporting Act, you’re entitled to a copy of any background check report used against you.
File an EEOC complaint. You have 300 days from the discrimination to file with the EEOC. The complaint should explain how the employer failed to follow proper procedures or applied their policy in a discriminatory way.
Consider legal representation. An experienced background check attorney can help you understand whether the employer’s actions violated federal, state, or local laws and guide you through the complaint process.
How Can Employers Develop Compliant Screening Policies?
Employers reading this should understand that proper criminal background screening isn’t just about avoiding lawsuits – it’s about accessing the widest possible talent pool while managing legitimate business risks.
Start by identifying specific criminal conduct that genuinely relates to particular positions. A DUI conviction might be relevant for a delivery driver position but not for an office administrator. Theft convictions might matter for cash-handling positions but not for many other roles.
Set reasonable time limits. Consider creating a matrix that weighs offense severity against time passed. Minor offenses might become irrelevant after three to five years, while more serious convictions might warrant longer consideration periods.
Train everyone involved in hiring on proper procedures. Many discrimination claims arise not from policies themselves but from inconsistent application by untrained staff.
What Are Common Misconceptions About EEOC Guidance?
Misconception 1: “The EEOC prohibits all criminal background checks.” Reality: The EEOC guidance doesn’t ban criminal background checks. It requires that they be job-related and implemented fairly without creating an unjustified disparate impact.
Misconception 2: “Employers must hire people with criminal records.” Reality: Employers can still exclude individuals whose criminal history makes them genuinely unfit for specific positions. The guidance simply requires individualized consideration rather than automatic exclusion.
Misconception 3: “Small businesses are exempt.” Reality: Any employer with 15 or more employees must comply with Title VII and EEOC guidance on criminal background checks.
Misconception 4: “State laws override EEOC requirements.” Reality: Employers must comply with federal, state, and local requirements. When state law conflicts with Title VII, federal law typically preempts state law if the state law permits discrimination.
What Recent Legal Developments Affect Criminal Background Checks?
Courts continue to uphold the principles behind EEOC criminal history guidance. In 2019, the Fifth Circuit’s decision in Texas v. EEOC left the guidance intact, despite state challenges.
Major settlements demonstrate that the EEOC actively enforces these requirements. BMW paid $1.6 million for a policy that excluded workers regardless of conviction age or relevance. Dollar General settled for $6 million after categorically excluding applicants based on criminal history without individualized assessment.
These cases send a clear message: employers who maintain rigid, blanket exclusion policies face significant legal and financial risk.
How Does Fair Chance Hiring Benefit Everyone?
Quick Answer: Fair chance hiring expands the talent pool for employers, reduces recidivism by providing economic stability, and strengthens communities by allowing people to contribute productively after serving their sentences.
The push for fair chance hiring isn’t just about individual rights – it benefits society broadly. When people with criminal records can’t find legitimate employment, recidivism rates increase, families suffer economically, and communities lose potential contributors.
Employers who embrace fair chance hiring often discover dedicated, loyal employees who value the opportunity they’ve been given. Many report lower turnover rates among workers with criminal records compared to their overall workforce.
Studies show that employment is one of the strongest factors in preventing recidivism. When someone can support themselves and their family through legitimate work, they’re far less likely to reoffend.
What Should You Know About Sealed or Expunged Records?
If you’ve had records sealed or expunged, your rights vary by state. In New York, employers generally can’t ask about or consider sealed convictions, and you can legally answer “no” to questions about them.
However, certain positions may still require disclosure of sealed records – particularly in law enforcement, education, or healthcare. Check your state’s specific laws about when sealed records must be disclosed.
Even with sealed records, some information might still appear in background checks. If this happens, you have the right to dispute inaccurate information with the background check company under the Fair Credit Reporting Act.
Taking Action: Your Next Steps
Understanding your rights under EEOC guidance on criminal background checks empowers you to push back against illegal discrimination. Remember these key points:
- Employers must consider your individual circumstances, not just whether you have a record
- You’re entitled to explain your situation and provide evidence of rehabilitation
- Criminal history must be genuinely job-related to justify exclusion
- Time matters – old convictions carry less weight than recent ones
- New York provides additional protections beyond federal requirements
If you’re facing employment discrimination based on your criminal record, or if you’re an employer needing help developing compliant screening policies, Nisar Law Group can help. Our experienced employment background check attorneys understand both EEOC requirements and New York’s Fair Chance Act.
Don’t let illegal discrimination based on criminal history derail your career or expose your business to liability. Contact Nisar Law Group today for a consultation about your specific situation. Together, we can work toward fair employment practices that benefit qualified workers and responsible employers alike.
A criminal record doesn’t have to define your future. With proper legal guidance and understanding of your rights, you can overcome background check barriers and build the career you deserve.
Frequently Asked Questions About EEOC Criminal Background Checks
You don’t automatically “fail” a criminal background check just because you have a record. Under EEOC guidance, employers can only exclude you if your specific conviction is genuinely job-related and recent enough to matter. Common illegal reasons employers wrongly reject candidates include having any criminal record at all, arrests without convictions, or old convictions unrelated to the job. Legal reasons might include recent theft convictions for cash-handling positions or violent crimes for jobs working with vulnerable populations. Remember – the employer must prove your specific situation poses a real risk, not just assume it does.
It depends on where you live and work. In New York, you generally don’t have to disclose convictions older than 7 years for most positions, and NYC’s Fair Chance Act prohibits employers from even asking until after a conditional job offer. However, certain regulated industries (banking, healthcare, education) may require disclosure regardless of age. Never lie on an application – if asked directly, answer truthfully based on what the question specifically asks. If it says “convicted in the last 7 years,” you can legally answer “no” to older convictions.
A legitimate red flag is a recent, job-related conviction that directly impacts your ability to safely perform the specific position. For example, a recent DUI for a delivery driver position or embezzlement for a financial role. But here’s what employers often treat as red flags that actually violate EEOC guidance: any criminal record whatsoever, arrests that didn’t lead to convictions, old convictions from 10+ years ago, or convictions unrelated to job duties. If an employer calls something a “red flag” without explaining how it specifically relates to the job you’re seeking, they may be violating federal employment law.
Most employment background checks go back 7-10 years, though this varies by state and position. The EEOC doesn’t set a specific limit but emphasizes that relevance decreases over time – research shows that after 7 years, someone with a criminal record poses no greater risk than someone without one. In New York, the Fair Credit Reporting Act generally limits reporting to 7 years for most convictions. However, positions paying over $75,000 annually or in regulated industries may look further back. The key isn’t how far back they check, but whether they can legally use old information against you.
People don’t actually “fail” background checks as often as you might think. When rejections happen, it’s frequently due to illegal discrimination rather than legitimate concerns. Common illegal reasons include blanket “no felony” policies, considering arrests without convictions, or excluding people for old or unrelated offenses. Legal rejections should only occur when there’s a direct, recent, job-related issue that the employer can prove creates a business necessity. If you’re rejected after a background check, you have the right to know exactly why and to provide additional context through an individualized assessment.
A standard employment background check typically reveals criminal convictions (misdemeanors and felonies), pending criminal cases, and sometimes arrests within the past 7 years. It won’t show sealed or expunged records in most states, juvenile records, or non-criminal traffic violations. In New York, employers shouldn’t see arrests that didn’t lead to convictions or violations that were resolved in your favor. Credit checks, education verification, and employment history are separate from criminal checks and require additional authorization under the Fair Credit Reporting Act.
No, this violates EEOC guidance. Employers must provide an individualized assessment, giving you the opportunity to explain your circumstances, provide context about the offense, and demonstrate rehabilitation. They must notify you in writing if they’re considering rejection based on your criminal record, provide a copy of the background check report, and give you time to respond (at least 3 business days in NYC). If an employer immediately rejects you without this process, they’re likely violating federal employment discrimination law, and you should document everything for a potential EEOC complaint.
Get ahead of the process by gathering documentation of rehabilitation: certificates from completed programs, character references from employers or community leaders, evidence of education or training since your conviction, and any certificates of relief from disabilities or good conduct. Know exactly what’s on your record by running your own background check first. Be ready to explain how you’ve changed and why your past doesn’t affect your ability to do this specific job. In NYC, remember that employers can’t even ask until after making a conditional offer, so focus on selling your qualifications first.
