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EEOC Tackles Pre-Employment Criminal History Screens

EEOC Tackles Pre-Employment Criminal History Screens

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.

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22 comments

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8:44PM PST on Dec 20, 2012

This is an issue right now in Washington DC, requiring employers to check backgrounds only after they make a job offer. Three quarters of African American men in Washington DC have criminal records (The Examiner (seems like a right wing rag), December 20 2012)

4:42AM PST on Dec 20, 2012

If for one minute you think that someone without a criminal background would be less likely to be hired than someone with a criminal background, you must be living in a cave. The reason for incarceration, probation and fines is to pay for committing a crime. If someone serves their time and complies with all the conditions of their sentence, they deserve the opportunity to be self-supporting. Minimum wage does not allow one to be self-supporting. A person must have certain things like a roof over their head and some food to eat, and how about clothes to wear. You tell me how long you would make it on a net pay of $250 per week (if you're lucky).

11:54AM PST on Dec 19, 2012

Don't do the crime....

1:54PM PDT on Aug 26, 2012

Does it not depend on the criminal act in hand? Should a convicted rapist that have been released be employed in a factory with a majority of female workers. Should a drunk driver, who has served his/her sentence, be allowed to drive a truck or bus? Should a drug dealer be employed at a hospital?
Some countries in Europe demand that anyone seeking employment to work with children, provide a statement from the criminal database. To become a taxi driver you can't have a criminal record that's not at least two years old (If you've committed a crime and you've served your time three years ago, you can get a permit, but it can also be denied).
Most transportation companies also require you to hand in a copy of your criminal records. Most people receive a page from the police after submitting a form to the legal authoroties and it's usually completely blank, meaning there are no convictions. It's not legal for them to require those papers, but if you don't they will deny you employment.

9:13AM PDT on May 10, 2012

The EEOC's new guidelines will have a significant impact on employers. Pre-employ attorneys and compliance experts are working to provide answers to your questions about EEOC guidance changes. Visit http://portal.pre-employ.com/eeoc-report.php to get Pre-Employ's findings, analysis and direction on establishing best hiring practices based on the new EEOC Enforcement Guidance.

4:09PM PDT on May 4, 2012

MO MONEY !

5:04PM PDT on May 3, 2012

After a person has paid their "debt to society" it should be left behind them, so that they can actually go on with their lives. to have it continue to be held over their heads, classifies it as cruel and unusual punishment which is altogether illegal in this country.

After someone has been released from prison they should be able to work to support a family and not be discriminated against for something they did in the past and with a chance at a real life, probably wouldn't do again. After the debt is paid. there is no earthly reason why they should be prevented from having the right to vote in this nation's elections.

It's definitely time to make big changes in this country...

3:24PM PDT on May 3, 2012

"If you have a criminal history that's your fault. You made someone pay the price for your actions now it's your turn to pay the price. Costly to you isn't it?

Yes it is, I was arrested in the mid 80's for drugs and paid for it with a decade out of my life so I guess you're right-it was costly. Since I've been out I resumed my education and finished the University of Maryland with a 4.0 and now run my own busness. I did this because I knew full good and well that despite my being convicted of a non violent crime that did not involve weapons or theft of property, I would be hamstrung when it came to seeking a job. We are told as a nation that incarceration is the atonement for a crime. Why then am I forced to pay for this discretion for the rest of my life? Why should I be denied a job if I'm better qualified? Additionally, I can't vote or buy a firearm to protect my home and family.
Yep, it was costly-but I paid the cost. However, I should not continue to be pay ad infinitum.

2:15PM PDT on May 3, 2012

when people get arrested for crossing streets between lights...or arrested for standing in the street..like in prtests..the record will hurt them just as bad as if they did a real felony.

9:14AM PDT on May 3, 2012

Considering that most of our incarcerated population is there because of drugs, I can see where they might not be hired to work in a pharmacy. But why can't they start as a clerk, or a mail room guy, or whatever, and be promoted as they prove themselves? You can't expect people to "rehabilitate themselves" if they can't get a job.

Of course, that is assuming that some jobs become available for people in general, soon...

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