EEOC Bans Discrimination Against Ex-Cons
- Policy bans employers from using arrest and conviction record as sole basis to turn away applicants, unless there is a compelling business reason to do so
- Refusal to hire people with criminal records had disproportionate affect on employment potential for African-Americans
- People fired or denied a job based on criminal record can now file a complaint with the EEOC
Impossible To Find a Job
In what could be a game-changing break for people with arrest records, the EEOC has updated its civil rights policies to provide stronger safeguards against applicants and employees being discriminated against based on their criminal history.
Previously, employers could toss out applications submitted by people with convictions, or even just arrests, with impunity. In a hyper-competitive job market, it was an easy way to reduce what could be hundreds of applications for a single position.
The problem was, for the some 65 million Americans who have been arrested or convicted of a crime, the screening process could make it almost impossible to get a job. What’s more, the EEOC found, since black and Hispanic men are arrested at a rate two to three times more frequently than Caucasian men, criminal screenings were disproportionately creating obstacles to minorities seeking jobs. “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” the commission said in its report.
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Compelling Business Reason
Under the new policy, companies can still consider criminal records, but can not make them the sole basis of excluding someone from employment, unless there is a compelling business reason to do so– i.e. a job that needs a high security clearance, or might involve handling large sums or cash.
Instead, the employer must consider the whole of the circumstances of the arrest or conviction before deciding whether or not to hire somebody– when it occurred, what exactly happened, how the crime might relate to the potential job and the applicant’s behavior in the years since the offense.
A 10-year-old DUI, for example, would probably not qualify as a reason to not hire a person as a retail clerk, all other factors being equal.
“It’s a pretty exciting development,” says John Mahoney, a Washington, D.C.-based employment attorney with Tulley Rinckey. “It’s going to have a major impact on how both private and public sector employers hire.”
The burden is now on businesses to prove that they won’t hire someone with a record for legitimate, and not discriminatory, reasons. “They have to show how in regard to that particular applicant or that particular job, their specific arrest or conviction excludes them from being considered from being able to hold the position at issue,” Mahoney says. “You can’t rely on that knee-jerk reaction to exclude someone from employment.”
Data shows that some 90 percent of employers look into arrest and conviction records, up significantly from previous decades. “With the ease of online criminal background checks, it’s very easy for employers to find out about that information,” says Mahoney, resulting in cascading difficulty for ex-cons, or even people who made one dumb mistake, to get back on their feet.
Some states and localities already have similar protections, as well as “ban the box” style legislation which bars employers from asking about criminal history until an applicant has already passed the first round of screening. The EEOC policy now escalates exclusion of people with criminal records to the federal level, and applicants who believe they have been unfairly turned away, or employees who have been fired, can now take up the matter with the commission.
“The employee can make a Title VII discrimination complaint based on being excluded from employment,” Mahoney explains. Then the company will have some explaining to do. “Why is it consistent with business necessity that you fired this person? What about this person’s background check or conviction record had anything to do with basic functions of job you were hiring for?” the attorney lists off. “If they can’t prove that, then they lose.”
Should employers be able to refuse to hire someone simply because they have a criminal record? Share your opinion by leaving a comment below.