Today the EEOC issued its Enforcement Guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.
Unlike New York law, federal law does not specifically prohibit discrimination based on arrest or conviction records. However, federal law does prohibit discrimination on the basis of (among other things) sex, race, color, national origin, and religion. Thus, for example, an employer may violate federal law when it either “treats criminal history information differently for different applicants or employees, based on their race or national origin” or when its “neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity”.