New rules on arrest records in employment

On April 25, the U.S. Equal Employee Opportunity Commission issued new guidelines on the use of arrest and conviction records in hiring. You can access the guidelines, and the EEOC’s Q-and-A, at www.eeoc.gov.

EEOC wants to give people who may have committed a youthful indiscretion (which of us hasn’t?) a better chance to get a job when the conviction should not disqualify the person from a particular job. It also seeks to mitigate the disparate impact of the criminal justice system on minorities.

A 2010 EEOC survey found 92 percent of employers reported using criminal background checks before some hiring; 73 percent reported using them for all hiring. The guidelines do not prohibit the use of criminal background checks. However, they attempt to reconcile use of those checks with civil rights laws. This is nothing new. The courts have been attempting to do this since 1977.

The guidelines do not apply to companies in some industries where the federal government mandates restrictions. For everyone else, if you want to conduct criminal background checks and use those in hiring decisions, you must have a narrowly tailored policy and procedure for screening applicants. The policy should be in writing, and:

• Identify the job requirements including the circumstances under which the job is performed;

• identify specific offenses that demonstrate unfitness for performing each particular job based on all available evidence;

• identify the duration of the disqualification;

• include a requirement for individualized assessment giving the applicant an opportunity to explain and requiring the hiring authority to consider all circumstances and less onerous alternatives;

• teach people in the company to limit questions in interviews to those items consistent with business necessity.

Automatic disqualification from employment based on a simple answer of “yes” to a question on an application (whether online or on paper) is not allowed. As one court noted, “we cannot conceive of any business necessity that would automatically place every individual convicted of any offense … in the permanent ranks of the unemployed.”

The guidelines list possible elements for individualized assessment including length of time since offense, work history before and after conviction, employment after conviction with no new offenses and references.

Beware of using arrest records because they’re not the same as convictions. Moreover, in most instances, a private agency providing criminal background checks is prohibited under the Fair Credit Reporting Act of reporting arrests more than seven years old that did not result in a conviction.

The guidelines state that they change the burden and pattern for a company defending a discrimination claim. But while they state that members of minority groups need to show statistically that their members are arrested in disproportionate numbers, the guidelines themselves cite statistics that seem to pre-establish this for African Americans (arrests at twice their proportion in the general population) and Hispanics (federal drug charges at three times). Consequently, any member of those groups should automatically be able to claim disparate impact, triggering the company’s need to “demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity,” and that a less discriminatory alternative does not exist.

In 2010, Michelle Alexander wrote a book titled, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” She makes some interesting points. A large majority of African American men in some urban areas, having been convicted as felons, are denied the right to vote, may not serve on juries and are discriminated against in employment, housing, access to education and benefits. Alexander has a theory on why such a disproportionate number of African Americans have been convicted of crimes. For our purposes, you need to know that the EEOC accepts similar statistics as evidence of disparate impact.

I do not defend the EEOC – it doesn’t need my defense and the guidelines are there irrespective. However, before roundly criticizing the change as an unjust burden on business consider one of the purported purposes of the criminal justice system: to rehabilitate people. Rehabilitation does not end at the prison door. People need attainable goals.

Or, perhaps from a selfish perspective: If previously convicted people can’t get jobs, what will they do for money? Turn back to crime? Get public assistance for themselves and their families? Be poor role-models for their children? Perpetuate a criminal underclass?

Create your new policy because you have to, but realize that you are investing in the future, helping to lower crime rates and possibly removing people from public support.

Alan F. Blakley is a lawyer with CR MILES PC in Fort Collins. He can be reached at afblakley@crmiles.com.

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