Last week the Equal Employment Opportunity Commission voted to revise its long-standing guidance to employers on how to appropriately evaluate job applicants’ criminal histories in pre-employment screening.
It’s a significant revision because an estimated 65 million Americans have some type of criminal record and the EEOC had not issued a revision since 1987 when it first formally recognized the “disparate impact” pre-hire screens has on African-Americans and Latinos. In fact, the NELP has estimated that up to 65 million U.S. adults face potential job restrictions because of past criminal offenses, including 1 in 17 white men, 1 in 7 hispanic men, and 1 in 3 black men.
To pass muster, job denials based on criminal convictions must be shown to be “job-related and consistent with business necessity,” according to EEOC guidelines. This means the employer must show that it considered three factors: the nature and gravity of the offense, the amount of time since the conviction and the relevance of the offense to the type of the job that’s being sought.
That standard has stood for 25 years, but a 2007 U.S. Appeals Court ruling found legal shortcomings, including a lack of legal analysis and factual research to support the standard. Those problems, and the increased availability of criminal-record data online, prompted the commission to update its guidance to employers.
Carol Miaskoff, an EEOC assistant legal counsel, said the new guidelines reasserted “fundamental legal positions the commission staked out over 20 years ago, providing more in-depth legal analysis with updated factual research.” The new guidance addresses those concerns, providing national criminal data on African-Americans and Hispanics that shows “criminal-record exclusions have a disparate impact based on race and national origin,” Miaskoff said.
While this is definitely a step in the right direction, a lack of clarity remains as to how and whether a pre-job criminal screen can be actionable racial discrimination under Title VII. That’s because while the EEOC warns that such practices can and often do have a potentially illegal-discriminatory effect it stopped short of calling pre-employment criminal screens inherently racially discriminatory.
But, the revisions do provide clearer examples for employers of practices that could violate Title VII, such as firing an already-hired employee purely on the basis of background checks, or automatically disqualifying all employees with criminal records in an online application. It also advises employers to inform potential employees when ex-offender status is being weighed against them and offers suggestions for how to consider and evaluate extenuating circumstances.
Along with numerous examples of policies that meet the “job-related” and “business necessity” standard, the new guidance analyzes the legal genesis of these standards in light of Supreme Court and federal appellate court case law.
Even if an employer can show that a job denial based on a criminal record met the “business necessity” standard, a plaintiff may prevail at trial if he or she can demonstrate that an employer refused to adopt “a less discriminatory but effective employment (screening) policy or practice,” Miaskoff said.
In short, so long as our criminal justice system remains heavily skewed toward apprehending and punishing people of color, and so long as employers have the ability to screen out candidates based on criminal history, pre-employment screens will remain a racially-problematic practice. But at least now it’s clear the EEOC has the issue on its radar.
Photo from Oregon DOT via flickr.