The Equal Employment Opportunity Commission (EEOC), in three recent opinion letters, has clarified that businesses must have clear reasons and policies for not hiring individuals with criminal pasts, especially if the not-hire decision results in a disparate impact in matters of race or national origin.

“Excluding people from employment due to criminal records may raise issues under Title VII [of the 1964 Civil Rights Act], especially if it disproportionately harms people of a particular race or national origin,” EEOC Legal Counsel Carol R. Miaskoff wrote in response to the inmates' inquiries in informal discussion letters dated Oct. 24 and Nov. 20.

If the not-hire decision does result in disparate impact, then "the employer must show that its policy is necessary in light of: the nature and gravity of the offense or offenses for which the applicant was convicted; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought,” she explained in the letters.