The Ex-Con Dilemma

Jenna Greene

Corporate Counsel

07-01-2012

Amid expectations of a political tempest, the U.S. Equal Employment Opportunity Commission issued new guidelines in April for employers on the use of criminal background checks when hiring employees. But for once the firestorm failed to materialize. Lawyers who follow the agency closely do not anticipate major enforcement policy changes as a result.

"The new guidance clarifies and updates the EEOC's long-standing policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders," EEOC chair Jacqueline Berrien said in a written statement.

In a 4-to-1 vote, the commissioners approved the 52-page document after reviewing hundreds of comments and holding a public meeting last year. Only commissioner Constance Barker, a Republican, voted against the guidelines.

The EEOC is concerned that the use of criminal background checks in hiring decisions has a disparate impact on minorities. According to the commission, one in 17 white men will serve time in jail during their lifetimes, compared to one in six Hispanic men and one in three black men. About 92 percent of companies report using background checks as part of their hiring process.

The guidelines reiterate existing law that employers must show that refusing to hire someone based on criminal history is job related, and spell out ways employers can show this.

"I applaud the EEOC's bipartisan effort," says Proskauer Rose partner Leslie Silverman, who served as an EEOC commissioner from 2002 until 2008. "The guidance is not going to answer every question, and it doesn't draw bright lines, but it does give employers a better understanding of the EEOC's position on how to use criminal background checks in compliance with federal antidiscrimination laws."

The agency's guideline review was prompted in part by a 2007 opinion from the U.S. Court of Appeals for the Third Circuit in a case involving a bus driver who was fired after his employer learned of his 40-year-old conviction for second-degree murder. The court said the EEOC's guidelines were "not entitled to great deference" because they did not "substantively analyze the statute."

At a meeting in July 2011, the EEOC commissioners discussed options such as barring employers from asking about old convictions, or prohibiting questions about criminal history on an initial job application (though the topic could still be broached in an interview). Business groups opposed such measures, and in the end, the commission did not include them in the guidelines.

Another question the commissioners addressed: What should happen when an employer learns that a prospective employee has a prior conviction? The EEOC determined it was a best practice—but not a requirement—for an employer to conduct an individualized assessment, to verify that the information is correct and give the applicant a chance to explain the circumstances.

The guidelines also note that Title VII of the Civil Rights Act preempts state and local laws that impose lifetime bans on employing people with long-ago convictions that bear no relation to their job performance and behavior today. "No longer will persons with criminal histories be permanently excluded from the workforce," says Ray McClain, director of the Employment Discrimination Project of the Lawyers' Committee for Civil Rights Under Law. A coalition of 55 civil and human rights groups praised the EEOC for clarifying the standards.

"The last guidance was written before anyone even knew what the Internet was, and a criminal background check was rarely used because it required so much personal attention to detail," Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights, said in a news release. "This update reflects the reality of a twenty-first century workplace, where background checks are widely performed, and applicants are thoughtlessly denied en masse."