The U.S. Equal Employment Opportunity Commission did employers a huge favor Wednesday when they freshened guidelines on how companies should use criminal background checks in deciding whether to hire a job candidate.
An EEOC commission voted 4-1 Wednesday to approve the new enforcement guidance. The rules now come with a question and answer sheet and some "best practices" to adopt. Take a peek at www.eeoc.gov.
"The new guidance clarifies and updates the EEOC's longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employers, and many other agency stakeholders," said EEOC Chairwoman Jacqueline Berrien.
Turns out, using only an arrest record to disqualify a candidate is NOT all right. Anyone can be arrested for any number of reasons. A conviction? Now that's another matter.
"The fact of an arrest does not establish that criminal conduct has occurred. Arrest records are not probative of criminal conduct," EEOC officials said in the new guidance materials. In contrast, "conviction records are considered reliable evidence that the underlying criminal conduct occurred."
The EEOC's main concern is that a job candidate not be denied employment for some meaningless arrest that happened ages ago and that had nothing to do with the job opening at hand. That is particularly important if the job candidate is a minority.
In issuing its revised enforcement guidance EEOC officials explained the following:
"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 an exclusion is 'job related and consistent with business necessity' for the position in question, the exclusion is unlawful under Title VII."
In short, having too rigid of a screening process may disproportionately affect certain jobseekers decades. Employment attorneys in the Twin Cities said they coach their corporate clients to be on alert.
Say a 30-year-old job candidate is applying for a data entry job at a company that will require no travel. The HR manager at that firm would have a hard time justifying denying the candidate because he was convicted 12 years ago of driving while under the influence of alcohol. The conviction has nothing to do with the job at hand, attorneys said.
In an effort to clarify how companies should screen potential workers, the EEOC held public meetings, took written comments and answered countless questions. Its new guidance now discusses:
• How an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII;• Federal court decisions analyzing Title VII as applied to criminal record exclusions;• The differences between the treatment of arrest records and conviction records;• The applicability of disparate treatment and disparate impact analysis under Title VII;• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and• Best practices for employers.
The EEOC has made its testimonies and transcripts and other materials from public meetings available at http://eeoc.gov/eeoc/meetings/index.cfm.
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