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EEOC Guidance

EEOC Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) in April 2012 released updated guidance on employers’ use of arrest and conviction records in making hiring decisions. (See Additional Resource 1 below.) Employers’ hiring decisions are separate from employment fitness determinations, which under the National Background Check Program (NBCP) are typically made by the grantee State agency. The grantee State agency uses an employment eligibility determination process to determine whether a prospective long term care direct access employee has any disqualifiers in his or her criminal history. If the grantee State agency deems a prospective employee to be eligible for employment, the employer then makes its own hiring decision.

An EEOC press release announcing the updated guidance stated, “While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex.” (See Additional Resource 2 below.) The press release further stated that the updated guidance “illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.”

After the EEOC released its updated guidance, at least one NBCP grantee State amended its existing legislation to address related issues. Specifically, the State added two items for consideration in the grantee State agency’s process for individuals appealing negative fitness determinations: the applicant’s demonstration of rehabilitation and the relationship of the conviction to the required employment duties.

Additional Resources

  1. EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Accessed at:
  2. Press release: EEOC Issues Enforcement Guidance: Commission Updates Guidance on Employer Use of Arrest and Conviction Records. Accessed at:
  3. New York Times article, “Equal Opportunity Panel Updates Hiring Policy,” April 25, 2012. Accessed at: