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Employers are beginning to re-examine and revise their hiring policies in response to the Equal Employment Opportunity Commission's guidance on criminal background checks, observers say.
The agency issued guidance on background checks in April that is intended to clarify and update its policy concerning the use of arrest and conviction records in hiring decisions.
The guidance requires employers to conduct individualized assessments, including an analysis of the crime for which the employee or applicant has been convicted, and the nature of their business. Any exclusion based on criminal conduct should be job-related and “consistent with business necessity” under Title VII of the Civil Rights Act of 1967, according to the EEOC.
Of particular concern to the EEOC, say observers, is the possible disparate impact of criminal background checks on minorities. According to the federal Bureau of Prisons, as of September, blacks accounted for 37.2% of the jail population, while representing only 13% of the total U.S. population in 2010, according to the U.S. Census Bureau.
Numerous governmental entities have removed conviction history questions from their job applications.
“The idea is not to protect violent criminals. The idea is to protect people who have unrelated, irrelevant criminal histories because they came out of difficult neighborhoods,” said Sheila B. Gladstone, chair of the employment law practice group at law firm Lloyd, Gosselink, Rochelle & Townsend P.C. in Austin, Texas.
But observers note that many ambiguities surrounding the issue remain. For instance, while a bank is not required under the EEOC guidelines to hire a teller who has been convicted of embezzlement, or a day care center to hire a convicted child molester, other hiring decisions are less clear cut.
Experts advise employers to refrain from implementing blanket policies against hiring people with criminal backgrounds, among other steps (see related story).
Richard B. Cohen, a partner with law firm Fox Rothschild L.L.P. in New York, said employers are “just sitting and waiting to see how (the guidance) gets fleshed out by the EEOC.” Mr. Cohen said he has not yet seen the issue reach the courts. “The guidance is relatively new,” even though “it codifies maybe 20 years of pervious EEOC practice.”
“I think people are starting to move towards what they think will become compliance, and at some point the EEOC is going to come out and set this in stone,” said James Branda, of counsel at law firm Erlich Law Office P.L.L.C. in Arlington, Va.
Donald R. Livingston, a partner with law firm Akin, Gump, Strauss, Hauer & Feld L.L.P. in Washington, said, “A lot of employers are making sure that their assessments of criminal convictions include an individualized review of each person who has had a criminal conviction.”
Michael A. Warner Jr., a partner with law firm Franczek Radelet P.C. in Chicago, said, “The biggest concern I've heard from employers is the large employers' administrative burden of conducting individualized assessments if they have a large number of hires,” particularly in positions where there is significant turnover.
Observers point out that while the guidance does not have the force of law, it usually is wise to take it seriously. While it is not a statute or regulation, “the EEOC has made it very clear that is one of their main focuses in their strategic enforcement imitative,” said Pamela Q. Devata, a partner with law firm Seyfarth Shaw L.L.P. in Chicago.
Peter J. Gillespie, of counsel at law firm Fisher & Phillips L.L.P. in Chicago, said, “Complying with the EEOC guidance is a difficult process” because it “is really asking employers to take a look at specifics and to draw distinctions, and to delve deeper into what might be gray areas on these criminal background issues.”
“Employers face a Catch-22,” said Kelly H. Kolb, a shareholder with law firm Fowler White Boggs P.A. in Fort Lauderdale, Fla. They either change their criminal background checks polices to enforce what the EEOC wants “and as a result risk hiring some convicted felon and incurring potentially unlimited court liability because of a rape and murder that results, or they disregard the EEOC's guidance and risk getting sued by the EEOC or by some applicant who's not hired,” he said, stating he prefers the latter.
“It's a difficult battle” for employers who are “trying to balance between the EEOC's interpretation of Title VII and their ethical and legal obligators to their employees, their vendors, their customers and third parties,” said Mr. Livingston. It is “very difficult for an employer to be able to make the kind of decisions that parole boards are not very good at, and that's trying to determine who is, and is not, at risk” of committing a crime.
Marc A. Mandelman, senior counsel with law firm Proskauer Rose L.L.P. in New York, said, “If you have someone who was convicted of felony drunk driving, that does raise questions about that person's ... fitness or reliability to perform a job that doesn't necessarily require them to drive.” It “becomes a judgment call as to being able to draw a connection between the requirements of the job and the particular circumstances and the criminal history that's been identified.”
In light of the guidance, employers had “better tailor their policies very narrowly, with an eye towards how this particular background check relates to the position they're trying to fill,” Mr. Cohen said.
A firm's policy “depends upon what the company's objective is,” said Mr. Livingston. “If their objective is to avoid entanglements with the EEOC, then it's important that the employer's policy have boundaries, and that it not automatically reject all applicants who have criminal convictions, but only those with criminal convictions that can be viewed as relatively recent, and for offensives that the employer can show are relevant to the employer's business.”