Published On: Thu, Apr 26th, 2012

NELP Applauds EEOC For Updating Guidance on How Employers Use Criminal Background Checks in Hiring

The U.S. Equal Employment Opportunity Commission (EEOC) voted 4-1 with bipartisan support today to update its decades-old guidance on how employers may use criminal background checks in hiring. The guidance promotes the fair hiring process for adults with arrests or convictions, while preserving employer flexibility and security on the job.

The last EEOC guidance on employer use of criminal records to screen applicants dates back to 1987, when current Supreme Court Justice Clarence Thomas chaired the EEOC. The guidance reaffirms the basic standards adopted in 1987 under Title VII of the Civil Rights Act of 1964. As required then, and reaffirmed by subsequent amendments to Title VII, because criminal background checks have a “disparate impact” on people of color, employers must show that the screening process is “job related” and consistent with “business necessity.” As the new guidance reaffirms, that means employers must consider the age of the offense, the seriousness of the offense, and its relation to the job in question.

“We applaud the EEOC, under the leadership of Chair Berrien, on this significant bipartisan action.  Given the new realities of criminal background checks and the difficulties workers face in navigating today’s economy, the EEOC has appropriately elevated the criminal records issue and taken needed steps to better prevent job discrimination,” said Christine Owens, executive director of the National Employment Law Project. “More employers are running criminal background checks than ever before.  At the same time, more Americans than ever have arrest or conviction records, including disproportionate numbers of workers of color.  Factor in how hard it remains for qualified job seekers to land a job in today’s economy, plus the sky-high unemployment rates facing African Americans and Latinos, and it’s clear why it was time for the EEOC to act.”

Today, more than 90 percent of employers conduct criminal background checks on some or all job applicants (up from 51 percent in 1996), according to a 2010 Society of Human Resources Management survey. The ramped-up use of criminal background checks adds a major hurdle to the job prospects of a vast segment of U.S. workers.

Workers such as Elsie Sacarello Quiles, a 56-year-old mother of four from Marietta, Georgia, have felt the sting of no-hire policies.  Last year, Elsie was fired on her third day on the job as a school bus driver, after a 1973 disorderly conduct offense from her teenage years came to light.  She was fired despite having strong references and 21 years of experience in education—six years as a school bus driver and 15 years working with students as a paraprofessional—and despite the fact that under New York law, where she had been charged with disorderly conduct, her offense was a “violation” and not a criminal conviction.

“The school district decided that what happened nearly 40 years ago was reason to fire me.  I felt so humiliated by it.  And it’s been hard for my family since I lost my job,” said Quiles.  “No one should have to go through this.  Employers have a responsibility to follow the law and look at the individual for the job. I’ve proven that I’m a great employee. My past employers will tell you that.  It makes no sense that something so minor, so unrelated to my ability to do the job well, from so long ago, got me fired.”

“Representing many hundreds of workers with a criminal record over the years who have turned their lives around, it’s clear that the EEOC action will go a long way to bring fairness to the criminal background check process,” said Sharon Dietrich, a managing attorney with Community Legal Services of Philadelphia. “It will help qualified applicants who can’t get a foot in the door because of overbroad restrictions, like blanket bans on hiring someone with a record; and will help my clients who pose no threat on the job but who have been denied consideration because of a minor, irrelevant, or dated blemish on their record.”

Employers who are concerned about this issue also welcomed the clearer guidance from the EEOC.  Brad Friedlander, a small business owner with five restaurants and 340 employees in Miami, Boca Raton, and Cleveland, said: “In my 40 years in the restaurant business, I’ve learned that a lot of employers just won’t consider anyone with a criminal record for a job, even if the person has the qualifications. The new EEOC guidelines, if they’re publicized and enforced, will go a long way to inform my fellow restaurant owners that there’s a more fair and responsible way to screen people with records.  In the end, as I’ve found, these workers can turn out to be the most dedicated and professional employees I have on my payroll.”

Fernán R. Cepero, vice president of human resources with the YMCA of Greater Rochester, added: “I’ve worked in the community for over 26 years, now serving as head of HR for a major urban employer.  As an employer who is often asked to speak on this issue, I can say that there is a definite lack of knowledge about how to comply with the civil rights laws.  Plus, there’s never been more of a need to get it right, since more employers are using these background checks than ever before. Updating the EEOC guidance puts this issue in front of employers and will give HR professionals the guidance they need to screen more fairly while ensuring safety and security on the job.”

Violations of federal civil rights laws in the form of blanket restrictions against hiring people with criminal records persist, despite the earlier guidance. Just this year, Pepsi agreed to a $3.13 million settlement after denying jobs to anyone with an arrest—even if the arrest never led to conviction or was minor and not job-related. A 2011 report by the National Employment Law Project documented these kinds of violations based on an analysis of job ads posted on Craigslist by small and large employers across the United States.

In the wake of the updated EEOC guidance, groups around the country will be stepping up their efforts to educate employers as well as workers on the fair use of criminal background checks.

Demand for the revised guidance was strong. Following a 2011 hearing on the issue, the EEOC received more than 300 public comments, which—by a two-to-one ratio—supported the need for updating the guidelines, to better reflect changes in the economy, workplace, and world of criminal records screening since issuance of the initial guidance 25 years ago.

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The National Employment Law Project is a non-partisan, not-for-profit organization that conducts research and advocates on issues affecting low-wage and unemployed workers.  For more about NELP, visit www.nelp.org.

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