The Equal Employment Opportunity Commission has updated its enforcement guidance on employers' use of arrest and conviction records in making employment decisions.  The enforcement guidance consolidates and clarifies prior EEOC guidance in light of judicial decisions on the use of arrest and conviction records. 

The guidance clarifies that the selective use of arrest and conviction records may constitute disparate treatment discrimination in violation of Title VII.  The guidance also explains how a neutral policy or practice that has the effect of screening out a protected group may violate Title VII under a disparate impact theory if the employer cannot show that the policy or practice is job related for the position in question and consistent with business necessity.   Exclusions based  solely on arrests will never meet this test,  but conviction-based screens may, if the employer considers the nature of the crime, the length of time since the crime, and the job requirements.