Reasonable Accomodations and Using Arrest and Conviction Records In The Hiring Process: EEOC To Hold Public Meeting To Discuss These Issues
On April 25, the EEOC will hold a public meeting in Washington D.C. to discuss the legality of employer's consideration of an applicant's arrest and conviction record when making hiring decisions. At this same meeting, the EEOC also plans to offer guidance on reasonable accommodations and undue hardship under the ADA. It is expected that the EEOC will offer additional, and perhaps written guidance, on these topics at the meeting or shortly after the April meeting.
In 2011 the EEOC's office of Legal Counsel issued a non-binding advisory opinion on employer use of arrest and conviction records during the hiring process. The opinions not only reaffirmed the EEOC's interest in employer background checks, they also outlined the EEOC's current thinking on the subject. Specifically:
- The EEOC will continue to draw a distinction between arrest and conviction records;
- The EEOC is not yet prepared to adopt a presumption of disparate impact when employers use arrest (or conviction) records in the hiring process; and
- The EEOC encouraged employers to make sure their criminal background checks related to the job duties for the position in question.
The EEOC also a public meeting in June 2011 to discuss reasonable accommodations and leaves of absence under the ADA. The EEOC indicated in that meeting that it would be releasing further enforcement guidance on that issue, but has not yet done so.