Civil Rights Law that Governs Employers’ Hiring Decisions:EEOC Enforcement Guidance

This section will explain the Equal Employment Opportunity Commission (EEOC) and the EEOC Enforcement Guidance. The EEOC is the federal government agency responsible for enforcing the civil rights of job applicants and employees. The EEOC Enforcement Guidance is a report that explains how and when employers can consider your criminal record when deciding whether to hire or fire you.

WHAT IS THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)?

The EEOC is a government agency that enforces Title VII and other civil rights laws that prohibit illegal discrimination against job applicants and employees. These laws protect you against unfair treatment based on your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.[2100] California law requires employers to fully follow all federal laws regarding how employers can consider your criminal history when hiring. This means that all employers must follow the EEOC guidelines, or else they have broken both federal and state law.[2101]

WHAT IS EEOC ENFORCEMENT GUIDANCE?

The EEOC investigates claims of discrimination by employers, and also issues special guidelines and “enforcement guidance” reports for employers to help them follow Title VII and other civil rights laws.[2102] The EEOC’s Enforcement Guidance is a report that describes how and when employers can use your criminal record to make employment decisions. The Enforcement Guidance says that—before making any negative decision based on your record, such as rejecting your job application—an employer must consider the nature of your conviction, the type of job you’ve applied for, and how much time has passed since the conviction.[2103] The employer should also consider your individual situation and give you a chance to explain yourself, including the circumstances of your conviction and why you would still be a good employee.[2104] However, the Enforcement Guidance does NOT have the same power as an actual law—it is basically a set of recommended rules for how employers should act and how courts should enforce the law. Courts should consider the Enforcement Guidance and may be persuaded to follow the EEOC’s recommendations, but they are not required to follow these rules.

To read the complete EEOC Enforcement Guidance, see http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf.

For more information about the EEOC Enforcement Guidance, see the following resources:

    What You Should Know About the EEOC and Arrest and Conviction Records—http://www.eeoc.gov/eeoc/newsroom/wysk/arrest_conviction_records.cfm
    Questions and Answers About the EEOC Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII— http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

Note: The EEOC is a federal government agency and enforces federal civil rights laws. California also has a state agency, called the Department of Fair Employment and Housing (DFEH) that enforces state civil rights laws against discrimination. For more information on how to enforce your rights through the EEOC, see Appendix O, PG. 640. For more information on how to enforce your rights through California’s Department of Fair Employment and Housing (DFEH), see Appendix P, PG. 642.

  1. 2100

    42 U.S.C. § 2000e-4. ↑

  2. 2101

    Cal. Gov’t Code § 12940 et seq. See also, e.g., Rodriguez v. Airborne Express, 265 F.3d 890, 902 n.4 (9th Cir. 2001) (“[Courts] may look to federal authority regarding Title VII and similar civil rights statutes when interpreting analogous statutory provisions of [California’s Fair Employment & Housing Act].”). ↑

  3. 2102

    42 U.S.C. § 2000e-4. ↑

  4. 2103

    EEOC Enforcement Guidance at § V(B)(6). ↑

  5. 2104

    EEOC Enforcement Guidance at § V(B)(9). ↑