New EEOC Rules Adds To Employers Decision Making Woes

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New EEOC Rules Adds To Employers Decision Making Woes

by Mark Fijman

In a lifetime of crime, Willie Sutton robbed banks of almost $2,000,000.00. From 1934 through 1947 he was one of the nation’s most successful bank robbers. He made the FBI’s Ten Most Wanted list in 1950, after escaping from prison disguised in a prison guard’s uniform. He’s famous for a comment he supposedly made to a reporter who asked him why he robbed banks. His now legendary reply was “because that’s where the money is.”

With his long history of arrests, convictions and prison time, what are the chances Willie Sutton would be hired today if he decided to go straight and fill out a job application for a sales job in retail, or even more unlikely, applied for a job as a bank teller? It’s no longer as easy a question to answer as many employers might think.

That’s because on April 25, 2012, the United States Equal Employment Opportunity Commission (“EEOC”) issued revised enforcement guidance on the extent to which employers may rely on an individual’s criminal history in making hiring or other employment selection decisions.

The new EEOC rules impose additional duties on employers to establish that any reliance on such information is legitimately “job related”. To borrow from Willie Sutton’s famous phrase, employers using criminal background histories in making hiring decisions now have to proceed very carefully, “because that’s where the liability is”.