EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Criminal Records

September 10, 2010

Dear,

Thank you for your letter dated August 19, 2010, in which you expressed concern that your son’s 1986 conviction for felony possession of marijuana is preventing him from finding a job. You contacted me based on a newspaper article about job screening practices.

The Equal Employment Opportunity Commission (Commission or EEOC) was created in 1965 to enforce the prohibitions against employment discrimination in the federal civil rights laws. The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination by many private employers on the basis of race, color, national origin, religion, or sex. The EEOC looks at criminal records exclusions because they can lead to employment discrimination that violates Title VII. When employers screen out an applicant due to a criminal record, the result typically is that African Americans and Hispanics are disproportionately excluded from employment opportunities.

If an employer excludes applicants because they have criminal records, and this practice disproportionately excludes African Americans or Hispanics, the employer must show that these exclusions are “job related and consistent with business necessity.” If they do not meet this standard, they are discriminatory and unlawful under Title VII.

The key is that the employer must consider the nature of the job, the nature and type of offense for which the person was convicted, and how long ago the conviction occurred. A practice of not hiring anyone who was ever convicted of a crime will not meet this standard if it disproportionately excluded African Americans or Hispanics. Ideally, the employer considers each applicant with a conviction individually, but if this is not practical, the employer may apply a carefully-tailored rule to screen applicants who are likely to pose an unacceptable risk in particular positions.

If your son was excluded from employment and believes that he was discriminated against, he may file a charge with the EEOC. The EEOC has two offices in Florida:

EEOC Miami District Office
One Biscayne Tower
2 South Biscayne Boulevard
Suite 2700
Miami, Florida 33131 Main telephone: 305-808-1740
Hours - 8:00 AM - 4:30 PM EST

EEOC Tampa Field Office
501 East Polk Street
Room 1000
Tampa, Florida 33602
Main telephone: 813-228-2310
Hours: 8:00 AM – 4:30 PM EST

Your son also may call 1-800-669-4000 to discuss his situation and to answer some questions to help decide whether to file a charge.

If you or your son would like more information regarding the use of arrest and conviction records by employers, the relevant EEOC documents are:

• EEOC Compliance Manual, Section 15: Race and Color Discrimination (2006), discussion titled “Conviction and Arrest Records” in Section 15-VI.B.2. http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction
• EEOC Policy Guidance No: N-915, “Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964,” September 7, 1990. https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions
• EEOC Enforcement Guidance No: N-915, “Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment,” July 29, 1987. http://www.eeoc.gov/policy/docs/convict2.html
• EEOC Policy Guidance No: N-915, “Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964,” February 4, 1987. http://www.eeoc.gov/policy/docs/convict1.html

We hope that this information is helpful to you. This letter is not an official opinion of the EEOC, but rather is an informal response to your inquiries.

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel

This page was last modified on September 15, 2010.

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