Miaskoff also advises that employers consider the required regular interactions with individuals—coworkers, customers, at-risk populations—and any state laws that regulate the profession.

After determining what categories of convictions would exclude a candidate from the position, other factors such as the nature of the conviction and the length of time since the conviction should be considered on a case-by-case basis.

Rationale of New Guidance

Miaskoff says the guidance was expanded in the wake of a 2007 decision in the Eastern District of Pennsylvania appellate court in the case of Douglas El v. the Southeastern Pennsylvania Transportation Authority (SEPTA). In that ruling, the court said that EEOC's existing guidelines were not detailed enough to provide hiring managers any definite help in setting company policies.

The new guidance lists two other incentives for the revision. First, it contends that more Americans are coming in contact with the criminal justice system. “By the end of 2007, 3.2% of all adults in the United States were [in] probation, parole, prison, or jail,” says the guidance. Second, EEOC contends that use of background checks in hiring has become a booming industry as the Internet accelerates record retrieval.

A survey of more than 400 H.R. managers, conducted this year by the Society of Human Resource Management, indicates that background checks have taken on a significant role in the hiring process.

Almost 70% of respondents said that they conducted background checks on all candidates in their companies. The most common reasons given for the checks were to avoid legal liability through “negligent hiring” and to preserve a “safe work environment.”

Miaskoff says the new guidance does not change established civil rights laws, noting that discrimination based on criminal conviction is a persistent problem connected to racial bias.

“When we look at our statistics, we still have a lot of race discrimination,” she says. “It's an important area for us to speak on.”