Criminal records may unfairly color hiring

With high unemployment rates, employers are receiving more applications than ever before in an attempt to fill what limited job openings they have with the most qualified candidates. When reviewing applications, employers should be aware of the new federal protections in place for criminal ex-offenders.
On April 25, the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The EEOC enforces Title VII, which prohibits employment discrimination based on race, religion, sex, or national origin, for employers with 15 or more employees. The new guidance supersedes all previous guidance in this area and was effective upon issuance.
Although having a criminal record is not specifically listed as a protected class under Title VII, the EEOC believes the use of criminal records in the hiring process may have a disparate impact on a protected class because of their race. Under Title VII, disparate impact can be shown if an employment practice or policy has a disproportionately adverse effect on members of a protected class as compared with nonmembers of a protected class. According to the EEOC’s guidance, African-American and Hispanic men are arrested at a rate that is two to three times the proportion of the general population and, therefore the use of criminal records in the hiring process may have a disparate impact.
So does the new guidance mandate that employers should stop conducting background screens or that they need to simply hire ex-offenders in every instance? No. Employers should, however, review their current screening policies to ensure compliance with the new guidance and consider following the EEOC’s suggested best practices. The guidance includes the following best practices for employers:
• Eliminate policies or practices that exclude ex-offenders.
• Train managers, hiring officials and decision-makers about Title VII and how to implement policy and procedures consistent with Title VII.
• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. This includes identifying essential job requirements and the actual circumstances under which the jobs are performed; determining the specific offenses that may demonstrate unfitness for performing such jobs; determining the duration of exclusions for criminal conduct based on all available evidence; recording the justification for the policy and procedures; and noting and keeping a record of consultations and research considered in crafting the policy and procedures.
• When asking questions about criminal records, limit inquiries to records for which exclusion would be job-related for the position in question and consistent with business necessity (not an outright “ban the box” that appears on the application but some employers may consider taking the question regarding criminal convictions off the application)
• Keep information about applicants’ and employees’ criminal records confidential.
Factors to consider for assessing criminal records are as follows: facts and circumstances surrounding the offense or conduct; number of offenses for which the individual was convicted; time that has passed since time of conviction or release from prison; rehabilitation efforts (additional schooling or training); length and consistency of employment history before and after the offense or conduct; employment or character references and other information regarding fitness for the particular position; whether the individual is bonded under federal, state or local bonding program; and evidence that the individual performed the same type of work post-conviction with no known incidents of criminal conduct. It is important to note the EEOC’s guidance does not have the force of law and may be vulnerable to court challenges, as the commissioners did not allow for public comment on new guidance. However, many courts routinely rely on EEOC policy statements and guidance.
The most dramatic effect will be for employers who are mandated to conduct criminal checks under state and local law. The EEOC clearly states that state and local mandates do not pre-empt Title VII. Rhode Island has several laws mandating criminal-records checks on facilities working with the vulnerable populations, such as child care facilities, nursing homes, hospitals and law-enforcement agencies. These state-mandated checks must now be balanced with the EEOC’s requirements of individualized assessments.
Although the guidance seems a bit overwhelming and employers may be tempted to ignore it as overly burdensome in some respects, it should be noted that the EEOC is aggressively looking to enforce this guidance. Their recently submitted strategic plan calls for a focus on strategic enforcement much more than education of employers related to EEOC guidance.
Most employers would agree there is a job for everyone, but not everyone is appropriate for every job. How an employer distinguishes which candidates qualify for a particular job will be critical in complying with the new rules. •


Christine M. Cunneen is CEO of Hire Image LLC, a background-screening firm based in Johnston.

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