New guidelines could alter employee background checks
Washington • Is an arrest in a barroom brawl 20 years ago a job disqualifier? Not necessarily, the government says in new guidelines on how employers can avoid running afoul of laws prohibiting job discrimination.
The Equal Employment Opportunity Commission (EEOC) said that although employers may legally consider criminal records in hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a disparate impact on racial and ethnic minorities, who have higher arrest and conviction rates than whites.
"The ability of African-Americans and Latinos to gain employment after prison is one of the paramount civil justice issues of our time," said Stuart Ishimaru, one of three Democrats on the five-member commission.
But some employers say the new policy approved in a 4-1 vote could make it more cumbersome and expensive to conduct individualized assessments. Companies see the background checks as a way to keep workers and customers safe, weed out unsavory workers and prevent negligent hiring claims.
The new standard urges employers to give applicants a chance to explain a report of past criminal misconduct before they are rejected outright. An applicant might say the report is inaccurate or point out that the conviction was expunged. It may be completely unrelated to the job, or an ex-con may show he's been fully rehabilitated.
The EEOC also recommends that employers stop asking about past convictions on job applications. And it says an arrest without a conviction is not generally an acceptable reason to deny employment.
While the guidance does not have the force of regulations, it sets a higher bar in explaining how businesses can avoid violating the law.
"It's going to be much more burdensome," said Pamela Devata, a Chicago employment lawyer who has represented companies trying to comply with EEOC's requirements. "Logistically, it's going to be very difficult for employers who have a large amount of attrition to have an individual discussion with each and every applicant."
The guidelines are the first attempt since 1990 to update the commission's policy on criminal background checks. Current standards already require employers to consider the age and seriousness of an applicant's conviction and its relationship to specific job openings. And it is generally illegal for employers to have a blanket ban based on criminal history.
But the frequency of background checks has exploded over the past decade with the growth of online databases and dozens of search companies offering low-cost records searches.
About 73 percent of employers conduct criminal background checks on all job candidates, according to a 2010 survey by the Society for Human Resource Management. Another 19 percent of employers do so only for selected job candidates.
That data often can be inaccurate or incomplete, according to a report this month from the National Consumer Law Center. EEOC commissioners said the growing practice has grave implications for blacks and Hispanics, who are disproportionately represented in the criminal justice system and face high rates of unemployment.
"You thought prison was hard, try finding a decent job when you get out," EEOC member Chai Feldblum said. She cited Justice Department statistics showing that 1 in 3 black men and 1 in 6 Hispanic men will be incarcerated during their lifetime. That compares with 1 in 17 white men who will serve time.
The EEOC also has stepped up enforcement in recent years. It currently is investigating over 100 claims of job discrimination based on criminal background checks.
Earlier this year, Pepsi Beverages Co. paid $3.1 million to settle EEOC charges of race discrimination for using criminal background checks to screen out job applicants, some who were never convicted.
Constance Barker, one of two Republicans on the commission, was the only member to vote against the new policy. She blamed colleagues for not letting businesses see a draft of the guidelines before voting to approve them.
"I object to the utter and blatant lack of transparency in the process," Barker said. "We are now to approve this dramatic shift ... without ever circulating it to the American public for discussion."
But other members said the commission held a major hearing on the issue last year and took more than 300 comments.
Nancy Hammer, senior government affairs policy counsel at the Society for Human Resource Management, said a big concern is the potential conflict between the new guidance and state laws that require criminal background checks in certain professions.
Nurses, teachers and day care providers, for example, are required by some state laws to have background checks. The new guidelines say a company is not shielded from liability under federal discrimination laws just because it complies with state laws.
Devata, the employment attorney, said the new guidelines may have a chilling effect that discourages employers from conducting criminal checks.
"I think some businesses may stop doing it because it's too hard to comply with all the recommendations in the guidance," she said.
The NAACP praised the new guidelines, saying they would help level the playing field for job applicants with a criminal history.
"These guidelines will discourage employers from discriminating against applicants who have paid their debt to society," NAACP President-CEO Benjamin Todd Jealous said.