The EEOC issued guidelines nearly a year ago that make it more difficult for employers to use criminal background checks to screen employees. The EEOC determined blacks and Hispanics are incarcerated at rates that are "disproportionate" to their share of the population. Thus the use of criminal background checks in the hiring process might be considered discrimination as they could have a disparate impact on minorities. Instead of writing a column telling you what the EEOC says, I will just publish excerpts of their guidelines so you can see the new policy in the EEOC's own words:
"A covered employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis" (This is established law. Nothing new in this statement.)
"A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity." (Here comes the shift.)
"Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population. Moreover, African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.
African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged. This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). Based on a state-by-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites, and 7 states had a Black-to-White ratio of incarceration that was 10 to1. In 2010, Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men." (For all the talk of "disproportionate, no one asks the question if they are simply committing more crimes, regardless of reason.)
"National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate impact charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s). For example, an employer may present regional or local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s particular geographic area. An employer also may use its own applicant data to demonstrate that its policy or practice did not cause a disparate impact." (Now the velvet glove is removed and the EEOC's iron fist appears. Some convict gets mad because he didn't get a job, he runs to the EEOC to file a complaint. The employer than has to deal with a federal investigation and if the convict gets permission to sue from the EEOC, here comes the lawsuit. But wait, it gets better.)
"An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact. In Connecticut v. Teal, the Supreme Court held that a “bottom line” racial balance in the workforce does not preclude employees from establishing a prima facie case of disparate impact; nor does it provide employers with a defense. The issue is whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities." (Use diversity goals in hiring? Have a staff that is 80% black in an area that is 80% white? Doesn't matter. Convict gets to go after business as it dared to try to find out if he was a convict.)
However, the feds do give an employer some defense: "To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position." Good luck with that one. But it the employer does reject the applicant based on his conviction, the EEOC has a few ideas for him:
"The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.." (Reject the convict because he is a convict? Get bogged down in paperwork.)
Suppose there is a state or local law requiring a criminal background check for employees? Tough luck. The EEOC takes the position it preempts such laws:
"States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability"
Worried? Wondering what to do? The EEOC has a simple solution for you: "Eliminate policies or practices that exclude people from employment based on any criminal record."
You simply can't make this up.
EEOC Guidelines on using criminal background checks