Use of criminal background checks in the employment field has caused a stir over the past few years since improper use of such checks can result in a claim of discrimination under Title VII of the Civil Rights Act of 1964, as amended. On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance on an employer’s use of the information gleaned from such checks in the hiring process. While the Enforcement Guidance, entitled “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964” (“Guidance”), does not establish any bright-line rule expressly prohibiting employers from accessing and utilizing the information obtained from background checks, it does reaffirm that an evaluation of an applicant’s criminal background should take into consideration the following factors from Green v. Missouri Pacific Railroad Company, 549 F.2d 1158 (8th Cir. 1977): (1) nature or gravity of the offense or conduct; (2) time elapsed since the conviction and/or completion of the sentence; and (3) nature of the job sought or held. Furthermore, the Guidance introduces the concept of an “individualized assessment,” which involves an employer informing an applicant that he or she is being screened out because of a criminal record, allowing the applicant to respond, and then considering extenuating circumstances before making a final decision. According to the Guidance, Title VII liability can be avoided by employers who tailor their screening approach using the Green factors and conduct an individualized assessment.

The 52-page Guidance provides further detail on a number of related topics, including disparate treatment, disparate impact, federal and state law application. Importantly, the Guidance also provides some direction on the use of arrest records, explaining that arrest records are treated differently than conviction records. An arrest record, on its own, cannot be used to deny employment. However, if the underlying conduct at issue is job-related and makes the applicant unfit for the position, the arrest record may be used in the hiring process.

For assistance in reviewing employment policies or procedures for compliance with the Guidance, please contact a Davenport Evans employment law attorney at 605-336-2880 or

Davenport Evans is a full-service law firm of over 35 attorneys located in Sioux Falls, South Dakota.

DISCLAIMER: This material is intended for informational purposes only and does not constitute legal advice or a legal opinion regarding any specific situation.