The Equal Employment Opportunity Commission announced in April, that it is cracking down on those employers who discriminate against applicants with a criminal history. The problem with this particular announcement is the lack of awareness in the small business community. Many small business owners are unaware that a ban on hiring employees with criminal records is in fact illegal and considered discrimination.

Because many small businesses do not have a person in Human Resources, they are not as educated in “compliance issues” says labor lawyer Laurence E. Stuart of Houston, Texas. The Equal Employment Opportunity Commission (E.E.O.C.) has issued enforcement guides (past policy statements) before. These guides were to educate employers on how to utilize past criminal histories without discriminating laws written in the Civil Rights Act. But this April the E.E.O.C. came out with a new policy that supersedes all previous enforcement guides. The policy was also released with a question and answer attachment to help explain the new enforcement guide.

The E.E.O.C. states that employers should not use arrest records at all because few result in convictions, or even charges, and that the use of an arrest record is presumed to be discrimination if used in the hiring decision. However employers may explore the cause and conduct that led to the arrest and can decide on that conduct whether that particular applicant is unfit or worthy of the specific position.

The guide does make statements on those applicants with convictions. One may prohibit potential employees who have convictions if the employer can prove that it is an exception based solely on the particular job being applied for and “consistent with business necessity.” To stay out of that quagmire, the Commission suggests an employer assess “the nature of the crime, the time elapsed, and the nature of the job.”

For more information on the Equal Employment Opportunity Commission new enforcement guidance please visit the policy at:

An attachment of question and answers to assist in clarifying the policy is located here:

To read over the Civil Rights Act in its entirety and to see where the E.E.O.C. has developed its past and present enforcement guide please visit:


Mandelbaum, Robb. “U.S. Push on Illegal Bias Against Hiring Those With Criminal Records,” Small Business Guide. The New York Times. 6/20/2012. (6/28/2012) kA8qNj7nYtg

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