Published February 23, 2013
Employers could be pressured to hire more workers with a criminal background under recent guidelines issued by the federal government.
The Equal Employment Opportunity Commission’s guidelines warn businesses about rejecting minority applicants who have committed a crime and recommend they eliminate policies that “exclude people from employment based on a criminal record.”
The EEOC says civil rights laws already prohibit different treatment for job applicants who are of a different ethnic background but have identical criminal histories. The update was issued out of concern that employers might disproportionally exclude minorities from getting hired because more African Americans and Hispanics are getting arrested and going to prison, according to the guideline report.
But businesses and even one EEOC commissioner strongly objected to the changes, saying they are confusing and go beyond the commission’s authority.
“The only real impact the new guidance will have will be to scare business owners from ever conducting criminal background checks,” said Commissioner Constance Barker, who cast the lone nay vote and was one two George W. Bush appointees on the Democrat-controlled commission at the time. Agency commissioners approved the report in a 4-1 vote in April 2012.
Though the percentage of working-age Americans with a criminal record has increased significantly over the past 20 years, African Americans and Hispanics are arrested two to three times as much compared with the rest of the U.S. population, the report states.
The commission report also states that businesses that continue to use background checks, in spite of the recommendation, should limit their inquires to criminal records related only to the open job.
The guidance is not legally binding, but the commission will use it as a basis of enforcing discrimination claims.
Barker, nominated by former President George W. Bush in 2008 and nominated for a second term by President Obama in 2011, said failing to get public input on the hastily compiled final report before voting showed an “utter and blatant lack of transparency.”
She also said the EEOC’s major shift in guidance from the past 22 years had “far exceeded its authority as a regulatory commission.”
Though ex-convicts seeking work are not protected under Title VII of the 1964 Civil Rights Act, the EEOC guidelines suggest that rejecting applicants because of their criminal record is not enough.
Instead, businesses must also prove the criminal history would exclude an applicant from a specific job or duties and consider such factors as how long ago the crime was committed.
The guidance tells businesses “they are taking a tremendous risk” by running such checks, Barker added.
The report also says federal law preempts state laws, including ones that would prohibit hiring ex-convict for some jobs, such as home health-care workers. So if companies reject a minority with a criminal history for the health-care job, for example, they now face a potential discrimination suit under Title VII.
“It’s very, very confusing,” said Kevin Connell, chairman of the Florida-base employment and tenant screening company AccuScreen.com. “You could be doing everything in your power to follow your own state’s guidance and the EEOC could still come after you.”
Carol Miaskoff, the commission’s acting associate legal counsel, told FoxNew.com on Friday that the guidance doesn’t preempt and conflict with all local laws.
She also disagreed with the argument that the commission has overstepped its authority.
“Clearly, the four commissioners who voted disagreed and thought it was within the scope of their authority,” said Miaskoff, adding the commission has provided such guidance since the 1980s.
Though the commission’s intent appears to be to increase minority hiring, the impact of the policy changes could have the opposite impact.
Studies published by the University of Chicago Legal Forum and the Journal of Law and Economics show businesses are much less likely to hire minority applicants when background checks are banned, as reported by The Wall Street Journal.