Employers urged to let applicants explain record
WASHINGTON – Is an arrest in a barroom brawl 20 years ago a job disqualifier? Not necessarily, the government said Wednesday in new guidelines on how employers can avoid running afoul of laws prohibiting job discrimination.
The Equal Employment Opportunity Commission’s updated policy on criminal background checks is part of an effort to rein in practices that can limit job opportunities for minorities that have higher arrest and conviction rates than whites.
“The ability of African-Americans and Hispanics 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 on a 4-1 vote – could make it more cumbersome and expensive to conduct background checks. Companies see the 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.
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 lifetimes. 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 more than 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.
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,” said NAACP President-CEO Benjamin Todd Jealous.
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