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Avoid Blanket Bans on Applicants with Criminal Histories

Employers should be careful when formulating policies related to job applicants with criminal histories.  The EEOC, in its enforcement guidelines published on April 25, 2012, advised that blanket bans on hiring applicants or declining to promote employees with criminal histories or even arrest records is a violation of federal law.  The EEOC premised its Guidelines on the majority of court decisions which ruled similarly on these types of questions.  The reasoning behind these court rulings is that such exclusionary policies disproportionately impact minorities.  An employer may exclude an applicant under the Guidelines if an individualized assessment determines the exclusion is due to a link between specific criminal conduct and the risks inherent in the job duties of a particular position.  Any individualized assessment must review three (3) main factors involving the nature of the crime, the time elapsed since the crime was committed, and the nature of the job.  The EEOC Guidelines can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.  For further information, please contact a member of our labor and employment law section.

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