Legally Obtaining and Using Criminal Records, and the Impact of the EEOC and Ban the Box
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The U.S. Equal Employment Opportunity Commission (EEOC) has revised its enforcement guidance regarding the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. This critical update, along with the increasing implementation of state and local “Ban the Box” legislation, is reshaping how employers across the nation conduct criminal background checks during the hiring process.
In this informative and actionable webinar, an industry expert will walk attendees through real-world examples and strategic steps to ensure compliance with federal, state, and local regulations. Participants will gain a foundational understanding of the criminal justice system and how to navigate available records. The session will focus on immediate, no-cost tools and techniques that demonstrate good faith compliance with the EEOC’s guidance. Attendees will leave with a clear, practical roadmap to ensure their hiring practices are fair, legally compliant, and defensible.
Your Benefits For Attending:- Understand longstanding court decisions and current EEOC guidance on the use of criminal records in hiring.
- Review how race and national origin discrimination issues intersect with background screening practices.
- Learn the critical distinctions between arrest and conviction records.
- Gain insight into how criminal records are maintained, accessed, and used by employers and background check firms.
- Understand the rationale behind Ban the Box initiatives and how to comply with their requirements.
- Explore disparate treatment and disparate impact under Title VII and how these concepts apply to criminal background checks.
- Break down the 2012 EEOC Guidance including key elements like “Targeted Screens” and “Individualized Assessments.”
- Learn recommended best practices for legal and fair background screening processes.
Why this webinar is a must-attend:
This session empowers HR professionals, hiring managers, and compliance officers with the knowledge and tools to make informed hiring decisions that are both legally sound and socially responsible. Stay ahead of changing regulations while protecting your organization from potential liability.
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Lawrence Hilton
Lawrence Hilton is an associate in the firm’s Charlotte office and has over ten years of legal experience.Prior to joining Fisher Phillips, Lawrence served as an Assistant United States Attorney in The United States Attorney’s Office for the Southern District of Indiana. While at the U.S. Attorn [...]
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This webinar received a total of 2 survey responses. Attendees have given an average rating of 4.9 stars out of a possible 5, reflecting the quality and value of the content presented.
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Our webinars are crafted to deliver exceptional value and insight to business professionals. Below, you'll find genuine feedback from attendees.
Claire C.
January 15, 2026
5.0 / 5
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The only feedback I have is to make sure you figure out the sound in the videos in the presentation. But otherwise I really enjoyed it and thought the presenter did a fantastic job!
Tammy Q.
January 15, 2026
4.8 / 5
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I really enjoyed Lawrence Hilton, he was very easy to follow and I chose interesting cases to highlight the issues of Ban the Box.
Frequently Asked Questions
The EEOC's 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII represents the most comprehensive federal guidance on this topic and continues to shape how employers must approach criminal background screening. The guidance acknowledges that criminal records can be considered in employment decisions but establishes that blanket exclusion policies—categorically refusing to hire anyone with any criminal history regardless of the nature, recency, or relevance of the offense—can violate Title VII by producing disparate impact on the basis of race or national origin, as research shows these groups are disproportionately represented in arrest and conviction statistics. The guidance introduces two key compliance frameworks: targeted screens, which narrow the records considered to those directly relevant to the position based on nature of crime, job duties, and time elapsed; and individualized assessments, which require employers to evaluate the specific circumstances of a candidate's record before making an adverse hiring decision. Employers should review their background screening policies against these frameworks to ensure any criminal record exclusion is job-related and consistent with business necessity.
The legal distinction between arrest records and conviction records is fundamental to compliant background screening practice. An arrest record reflects that an individual was detained by law enforcement—it does not establish guilt and may have resulted in dropped charges, a not-guilty verdict, or no prosecution at all. The EEOC has consistently held that using arrest records alone as a basis for adverse employment action is legally problematic because an arrest without conviction provides no reliable evidence that the individual committed a criminal act. Conviction records, by contrast, represent an adjudicated finding of guilt and are more defensible as a basis for employment consideration—provided the nature, gravity, and recency of the offense are assessed in relation to the specific job's requirements. Employers should ensure their background check policies explicitly distinguish between arrests and convictions, train hiring staff on this distinction, and avoid making adverse decisions based solely on arrest history. Even conviction records should be evaluated through the lens of relevance: a 20-year-old conviction may not be relevant to a current position if the underlying offense is unrelated to the role's risks.
Ban the Box refers to legislation—enacted in a growing number of states, counties, and cities—that prohibits employers from asking about an applicant's criminal history on initial job applications (the 'box' being the checkbox asking 'have you ever been convicted of a crime?'). The intent is to give applicants with criminal histories a fair opportunity to be evaluated on qualifications before background becomes a screening factor. Ban the Box requirements vary significantly by jurisdiction: some apply only to public employers, others to private employers above certain size thresholds, and some prohibit criminal history inquiry at any point before a conditional offer of employment. New York City's Fair Chance Act, for example, prohibits asking about criminal history before a conditional offer and requires employers to follow a prescribed process before withdrawing the offer based on background check findings. Multi-state employers must map their hiring processes against the specific requirements of each jurisdiction in which they operate and maintain jurisdiction-specific application forms, interview guides, and adverse action procedures to avoid administrative fines and civil claims.
Individualized assessment is the process by which employers evaluate the specific circumstances of a candidate's criminal record before making a final adverse hiring decision, rather than applying automatic exclusions based on the existence of any record. The EEOC's framework requires consideration of three primary factors: the nature and gravity of the offense (the seriousness of the crime and what it suggests about risk in the context of the position), the time elapsed since the offense or completion of sentence (recognizing that recidivism risk decreases significantly with time), and the nature of the job held or sought (specific duties, setting, and degree of trust or vulnerability involved). Practically, when a background check reveals a relevant record, the employer should notify the candidate, provide a copy of the report and summary of rights, and give the candidate an opportunity to provide context—explaining circumstances, evidence of rehabilitation, or factual inaccuracies. This pre-adverse action process is also required by the Fair Credit Reporting Act when third-party background check firms are used. The employer then weighs all information before issuing a final adverse action decision, documenting the analysis throughout.
Building a legally compliant and fair criminal background screening process requires both strong policy design and consistent operational execution. Best practices begin with a written background screening policy that defines which positions require checks, which record types are reviewed, the evaluation criteria, and how the individualized assessment process is conducted. The policy should explicitly prohibit blanket exclusions, require job-relatedness analysis for any record considered, and establish the pre-adverse action notice procedure required under FCRA. Background check firms used must be FCRA-compliant and regularly audited for accuracy. Hiring staff and HR personnel should be trained on EEOC guidance, the arrest-versus-conviction distinction, Ban the Box requirements in applicable jurisdictions, and how to conduct individualized assessments without incorporating protected class assumptions. A regular audit of adverse action decisions—examining whether outcomes are disproportionately affecting protected classes—is essential to identify disparate impact before it generates EEOC complaints. Partnering with employment counsel to review background screening policies annually ensures the organization stays current with evolving federal and state requirements in this rapidly changing area.