The U.S. Equal Employment Opportunity Commission voted Wednesday to revise its long-standing guidance to employers on how to properly evaluate job applicants’ criminal histories in pre-employment screening.
The issue became a controversy because an estimated 65 million Americans have some type of criminal record, which can make it very difficult to get a job. Researchers found in 2009 that a criminal record cut chances for a job callback or offer by nearly 50 percent.
But employers, charged with guarding companies’ assets and the safety of their workers and customers, say record checks are essential in judging job seekers’ judgment, trustworthiness and reliability.
Rather than establish new rules, the revamped guidelines provide more clarification and detail on the standards that were first established in 1987. They also make recommendations on how employers can avoid EEOC scrutiny when they’re considering job seekers with previous arrests and convictions.
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.”
Wednesday’s 4-1 vote to adopt the revised regulations capped a two-year review of the issue by the EEOC, which enforces Title VII of the Civil Rights Act of 1964. That law that bars employers from using job-screening standards that have a disparate racial impact.
Denying jobs solely on the basis of criminal convictions is illegal, because it would disproportionately affect African-Americans and Hispanics, who have higher rates of arrest and criminal conviction. If current incarceration rates continue, one in 17 white males are likely to go to prison at some point in their lives, compared with one in six Hispanic males and one in three African-American males.
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.
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.
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.
The National Retail Federation expressed concern that the new guidelines recommend that employers not ask about convictions on initial job applications and that when they do, “the inquiries be limited to convictions for which exclusion would be job-related for the position in question.”
Doing that would “restrict employers’ ability to ensure the safety of their workers and customers,” said David French, the federation’s vice president for government relations. He said the federation would continue to discuss the issue with the EEOC and other business organizations.
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