We’re pleased to this week bring you a new article by contributing writer and seasoned legal field professional, Suzanne Reisig Olden.
The EEOC To Employers: You Can’t Ask An Ex-Con/Potential New Employee About His Criminal Record.
By Suzanne Reisig Olden
Last week, the Equal Employment Opportunity Commission (EEOC) enacted legislation that restricts the ability of employers to ask a prospective employee if s/he has a criminal conviction record.
Specifically (and from the EEOC site):
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. The Guidance consolidates and supersedes the Commission’s 1987 and 1990 policy statements on this issue as well as the discussion on this issue in Section VI.B.2 of the Race & Color Discrimination Compliance Manual Chapter. It is designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff.
How is Title VII relevant to the use of criminal history information?
There are two ways in which an employer’s use of criminal history information may violate Title VII (“disparate treatment discrimination”).
First, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.
Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”). If the employer does not show that such exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
Aside from “Because we can.”, what is the logic behind this new law? Citing this as one of its primary reasons, the EEOC stated that according to recent studies, 25% of ex-felons are of African-American background; comparatively, twice the US population of that specific demographic.
The NAACP is applauding the decision. “The Equal Employment Opportunity Commission’s decision will help balance the playing field for job applicants with a criminal history,” NAACP President Benjamin Todd Jealous said in a statement immediate following the EEOC’s new rule. “Our criminal justice system is deeply biased against people of color, and that disparity can carry over to the job search. These guidelines will discourage employers from discriminating against applicants who have paid their debt to society.”
The NAACP enjoys a rich history in, and well deserved reputation for, forwarding the equal application of civil rights, that includes those of all people, but I will respectfully disagree with Mr. Jealous on this issue in that this new EEOC legislation is the wrong call on hiring practices.
(This ruling is offensive on its face and has a massive negative impact on employers of all races, gender, ethnicity…, as it presumes that private businesses are hiring by race as opposed to the ability to do the job and in compliance with hiring criteria already set forth by the EEOC and many other HR-related agencies. “Coding” legislation is just another smoke and mirrors governmental overreach and as usual with overly invasive bureaucratic oversteps, hurts the majority of people who it affects. Playing the race card is NOT a function of the EEOC and I’m not going to, at all, address that disingenuous aspect of the rationale for the new legislation. )
I will, however, question the legitimacy of this ruling in light of (i) existing employment regulations that already protect prospective employees from unfair hiring practices and (ii) the impossibility of complying with this new mandatory hiring guideline and, simultaneously, the 59-page FTC Red Flag law passed in 2010 that boils down to holding an employer responsible for safeguarding client, consumer and patient information against fraud. Specifically, Red Flag dictates that employers can only make consumer information available to “essential, need to know” employees. The reality is that, in general and as a good business practice, employers have need-to-know policies in place but they exist on a very fluid plane. This is particularly true in small to medium-sized companies wherein one or several employees usually take on more work than the position for which they were hired. (Which brings to mind the question, “If an employee is to be promoted to a position that includes previously restricted company/consumer information, can the background of this employee then be checked?? The absolute “need to know” criterion only works well in the military and for obvious reasons. Soldiers are trained to comply with orders and given their work/lifestyle environments, understand and respect the underlying premise for maintaining information to the level for which they are qualified. They also understand and respect each other to not ask for details they know they should not possess. The civilian world does not work with that uniformity, leave alone the civility of not prying and then there is the potential of being accidentally and or incidentally exposed to protected information.)
Certain industries are exempt; hypocritically, the majority of federal jobs. Such as most EEOC positions.
Moving along to the actual meat of the new legislation, the EEOC has graciously extended their “Employer Best Practices” suggestions to help civilian employers in following the rules from which they themselves are self-excluded:
- Eliminate policies or practices that exclude people from employment based on their criminal record. (Every position in any company will expose all employees to client, customer or patient information. The reality is that the house/office cleaner, the CEO, and all of the people in the middle will have access in some form or fashion to this data. Inevitable.)
- Train managers and HR employees about the new Title VII restrictions. (Okay…)
- Develop a “narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. (This piece of advice is deceptively suggestive of a good method of noting compliance. Employers know the opposite is true. Narrow policy definitions will only aid defense counsel, if a lawsuit situation were to arise, not indicate the thoroughness of hiring practice.)
- Identify essential job requirements and the actual circumstances under which the jobs are performed. (Does Staples sell crystal balls?)
- Determine the specific offenses that may demonstrate unfitness for performing such jobs. (It’s Human Resources, not CSI.)
- Identify the criminal offenses based on all available evidence. (Welcome to the fictional L&O 27th NYPD Precinct.)
- Determine the duration of exclusions for criminal conduct based on all available evidence. (Again, Human Resources. Not forensics psychology.)
- Include an individualized assessment. (That’s what employers have hired and not hired boxes on interview records.)
- Record the justification for the policy and procedures. (Simply, from the employer, “Because I paid for all of this and it is my knowledge that feeding my family is a good thing and expected. The other people who work here share this intuition.”)
- Note and keep a record of consultations and research considered in crafting the policy and procedures.” (Can the EEOC spare interns for the book?)
In other words, identify (guess) and justify (guess) which crimes can be excluded and keep copious notes to CYA. Most importantly, remember that when asking questions about a criminal past, you (as the employer) have to limit your questions to only those that would affect the job. Add Best Practices #11: Locate and possess a four-leaf clover.
These “tips” are not helpful. To comply with this overreaching new rule, employers would have to hire a dedicated HR person/team (depending on company size), monitor every employee and have a good employment attorney on redial or the funds for in-house counsel.
How much litigation will restricting conviction record questioning open up for private business entities? Is the EEOC ready to accept liability when an “uncheckable” employee burns down the store, robs the safe or injures a co-worker? This major misstep by the EEOC is a dangerous version of “Don’t Ask, Don’t Tell”; the new “Can’t Ask, Won’t Tell”. (The latter’s acronym is phonetically ironic.)
CAWT is bad policy. Should employers give ex-con’s a chance? Sure, if and only if they are comfortable with hiring that person and willing to assume responsibility for the employee’s actions. The only way an employer can rationally make that decision is by being informed. The “Have you ever been convicted of a felony?” question must have the ability to remain on an employee questionnaire. The EEOC deems it perfectly reasonable for employers to ask a potential new hire for his/her credit report, which is truly intrusive (albeit, necessary for many positions). Following this train wreck of bloated government logic, it’s okay to find out how much money an employee has at his/her disposal, but not how s/he got it if it looks hinky.
Employers must be freed of these types of, at best, misguided legislated hiring policies. The EEOC cannot decree that employers must blind-hire. That is the pared down real objective of this new mandatory hiring guideline.
- Employers advised on considering arrest records (whptv.com)
Filed under: background checks, Human Resources Tagged: | background check, Benjamin Jealous, Civil Rights Act of 1964, criminal background check, criminal record, eeoc, Employment, Equal Employment Opportunity Commission, Human resources, Title VII, United States