The EEOC guidance that came out in early 2012 has had quite an impact on the HR industry. Prior to April 25, 2012, the EEOC discouraged employers from inquiring about arrests in employment decisions, due to the risk of disparate treatment (adverse impact) on certain minorities; and encouraged employers to look at the circumstances underlying a record of a criminal conviction in relation to the position being filled, prior to making an adverse employment decision.
However, the EEOC has communicated its’ growing concern ove disproportionately high incarceration rates of African Americans and Hispanics, particularly men. There is also a concern regarding ‘Disparate Treatment’ discrimination of African Americans and Hispanics via criminal background screening by employers. What is disparate treatment discrimination? As an example, say an employer rejected a candidate application for employment due to a misdemeanor offense from 8 years prior, but had made an exception in a similar instance for a white candidate with a similar record. What is Disparate Impact Discrimination? A 1991 Amendment to Title VII of the Civil Rights Act of 1964 states “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin and the employer fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” The majority of the revised EEOC Guidance addresses the EEOC’s concerns of Disparate Impact Discrimination of African-Americans and Hispanics as a result of criminal background screening.
Although the EEOC Guidance is just that, they do pursue legal action, and conducting investigations. The EEOC has made it clear that a large part of its’ core mission is that there has to be fairness in the way people obtain employment, and that criminal records should not automatically disqualify someone from employment. With that being said, there are fair uses for criminal record checks, particularly if the criminal record is job-related. But, an instant negative reaction is a problem because it demonstrates disparate impact.
The EEOC does provide employers additional guidance on acceptable use of criminal records, such as analyzing the type and age of the crime and how that relates to the requirements of the position being filled. The EEOC has many other suggestions such as employing individualized assessments. Employers should be moving toward implementing this sooner rather than later. Individualized assessments mandate that if an employer decides against hiring someone because of a criminal record, they must then allow the applicant the opportunity to correct any misinformation.
The bottom line is is that if a company fails to treat all employees or prospective employees equally – such as disqualifying an African-American applicant with a criminal record that is identical to that of a Caucasian applicant that is hired – that company could be violating federal law. In addition, processes that have a disparate impact on protected groups, that is, policies that are neutral on their face but end up harming groups that are more likely to have a criminal record – are also illegal. An example of this is a company that refuses to hire anyone with a criminal record, no matter how insignificant. Since this policy may adversely impact a protected group, it will only be defensible if the company can show that the criminal conduct of the applicant or employee is directly linked to the inherent duties of a particular position.
When creating your hiring processes, it’s better to play on the safe side and follow EEOC Guidance. You can review this in its entirety here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm