BNA Daily Report for Executives (03/14/12) Kevin P. McGowan

At a recent conference, Victoria Lipnic, commissioner of the U.S. Equal Employment Opportunity Commission, said the agency could soon update guidance on companies’ use of arrest and conviction records, noting that a draft would not be released for public comment but would be debated and voted on internally. “Blanket” hiring policies excluding individuals with past convictions could amount to discrimination against black and Hispanic applicant, she said.

Under existing EEOC guidance, employers must consider the nature and gravity of the offense, how much time has passed since the conviction, and the nature of the job, and if disparate impact is shown, Lipnic said, employers must show their hiring policy is related to the job and necessary to the business. She added that employers with blanket policies will be targeted by the EEOC for investigation and even litigation. The fact that employers now have access to more criminal background information via the Web is another reason why the guidance could be updated soon.