EEOC: Employers can’t refuse to hire convicts

posted at 9:30 am on August 16, 2010 by Ed Morrissey

At one time, the Equal Employment Opportunity Commission fulfilled an arguably important role in enforcing anti-discrimination laws against people who really faced unfair discrimination.  Now, it appears the EEOC has declared war not just on unreasonable and unjust discrimination, but on all discrimination in hiring — even reasonable choices by employers.  In a page updated ten days ago at the EEOC, the commission warns employers that basing decisions not to hire people based on background checks may violate their notion of fairness, even if the law doesn’t actually cover it:

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

  • considering the nature of the job,
  • the nature and seriousness of the offense,
  • and the length of time since it occurred.

This is also true for a conviction.

Actually, no, it’s not also true for a conviction.  With a conviction, an employer can assume that the person committed the crime and make hiring decisions based on that information, in whole or in part.  The point about arrests is a good one, but most background checks done by hiring companies only include convictions (and in some cases, civil actions as well); arrest records that don’t lead to court appearances are not usually that easy to acquire.

The hiring process involves a series of value judgments, with only a few objective measures.  For employers who conduct background checks, conviction records supply one of the few objective measures in the process.  If an employer has a choice between two equally qualified applicants and one has a conviction for fraud or theft, it would be absurd to tell the employer that the hiring decision cannot rest on that data.  And yet, that’s exactly what the EEOC argues in this “advice” on compliance with its regulations — which in this case the EEOC acknowledges doesn’t exist on this topic.  The EEOC is making a recommendation based on its own opinion rather than actual law.

It’s impossible to tell for certain when this advice was first offered; the last page revision came on August 6th of this year, according to the HTML source code.  However, I’d be willing to bet that this advice is recent [see update below], because it would have been unnecessary when unemployment was low.  Competition for labor would have forced employers with open entry-level positions to consider people with criminal records for some roles.  The glut of labor on the market means that anyone with a record will find it very hard to find a job, and the EEOC apparently has decided to run interference for them by intimidating employers into treating convicts as a protected class.

But here’s the real question: if truly unfair discrimination has become so rare that the EEOC has to attack reasonable and rational choices in hiring based on the actual record of the applicant, hasn’t the EEOC argued for its own dismantling?

Update: This is not a new policy, so I lose my bet.  It goes back at least to 1985, according to documents supplied to me by a source.  Whether or not the web page is new or just a refreshed edition is still not clear.  It’s still just as asinine and offensive.


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I don’t see the outrage here. A strict policy of not hiring people with criminal records would have a disparage impact on blacks because of the much higher black incarceration rate. As racial minorities are a protected group under Title VII of CRA, the burden of proof is on a business to show that such a policy is necessary. A policy of not hiring drivers with recent DWI convictions would be narrow enough to pass muster. Not hiring people with drug convictions as sales manager probably would not.

Of course, it’s a sad comment on the black community that the government has to intervene this way. In Griggs v. Duke Power, the question was over the necessity of having a high school diploma. Now, we have to dial down the level of expectation even further.

year_of_the_dingo on August 16, 2010 at 11:56 AM

Not all “criminals” are criminal. If the EEOC is painting with that broad brush, shame on them. To take it and invert it is just as bad.

BillyWilly on August 16, 2010 at 11:53 AM

If you have two candidates of near equal experience, and equal in ability…then you should have the right to choose the one with the “clean” record.
Here is a hint for all young people: Don’t do anything that gets you thrown in jail as a convicted criminal.
The one that leads a pristine life, should be honored and chosen above others…the one that has done wrong, just has to work harder.
Either way, the EOCC should butt out, it is none of their business.

right2bright on August 16, 2010 at 11:57 AM

……………….could limit the employment opportunities of some protected groups and thus cannot be used in this way.

YEA, LIKE DEMOCRATS!

UNREPENTANT CONSERVATIVE CAPITOLIST on August 16, 2010 at 11:57 AM

employment opportunities of some protected groups

Oh no! Not the poor, poor protected groups. The horror.

What is the penalty? Companies will ignore this, anyway.

reaganaut on August 16, 2010 at 11:58 AM

don’t know if it is current but a couple of years ago to work for a particular public school system, an applicant had to have a criminal check, a financial check and a social services check. It seems like a lot.

Cindy Munford on August 16, 2010 at 9:58 AM


Cindy – Here in AZ the Higley School district does all of that just to volunteer at the schools. I couldn’t work a party in my son’s classroom, no passing out cupcakes, without a credit check. They’ve also now instituted mandatory volunteer training. A day of training to shelve library books or work a party or help with a field trip. Needless to say I’m not signed up as a volunteer. They don’t train/background check their teachers this well.

mauioriginal on August 16, 2010 at 11:58 AM

I’d rather see them confront the credit check discrimination instead.

My less than spectacular credit has cost me a job or two in the past.

ButterflyDragon on August 16, 2010 at 11:59 AM

However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

In other words, because a preponderance of those committing crimes are from minority groups, using a criminal record in hiring decisions violates their civil rights. Is this administration insane?

NNtrancer on August 16, 2010 at 12:01 PM

Who is gonna be the first city to place that reformed ex-con in a police uniform?

SF?

Freddy on August 16, 2010 at 12:01 PM

The EEOC is evidently applying pressure to get more African Americans hired since they have a hugely disproportionate representation on criminal records.

http://www.google.com/hostednews/ap/article/ALeqM5g9mBNs_6usTSEuZ9yff-j-evFEzgD9HHGLV00

Chessplayer on August 16, 2010 at 11:40 AM

That really is a very large unspoken truth underneath all this. Reparations, anyone? Redistribution by theft doesn’t seem to be a problem for this administration, does it? Afterall, it IS the Chicago way.

Anyway – ALL my employees at the airport get fingerprinted and have to pass rigorous Metro PD, FBI and TSA (10yrs) background checks for me to be allowed to hire them. I guess we can skip all that now?

Fishoutofwater on August 16, 2010 at 12:01 PM

Actions have consequences. This will have the opposite effect of the intended one.

Schadenfreude on August 16, 2010 at 12:03 PM

Dave Ramsey (financial talk radio guy) has been ragging on the use of FICO scores to evaluate job applicants, rather than the entire credit report. If you get completely out of debt and stay that way for a few years, your FICO score can drop off into ranges similar to that of someone in bankruptcy.

slickwillie2001 on August 16, 2010 at 12:12 PM

My christian upbringing taught me to forgive. But I see most here are unwilling to do that. So unless the penalty for a misdemeanor conviction is life in prison and all felonies get the death penalty, what is the solution? Lifetime welfare?

Oh and by the way what about TEA Party members arrested on trumped up disorderly conduct charges because the democrat officeholder didn’t like his or her views, are these people now unemployable?

meci on August 16, 2010 at 12:17 PM

…are these people now unemployable?

meci on August 16, 2010 at 12:17 PM

That is completely up to you as an employer. Or would you rather have bureaucrats and legislators making these decisions?

anuts on August 16, 2010 at 12:22 PM

My christian upbringing taught me to forgive. But I see most here are unwilling to do that. So unless the penalty for a misdemeanor conviction is life in prison and all felonies get the death penalty, what is the solution? Lifetime welfare?

Oh and by the way what about TEA Party members arrested on trumped up disorderly conduct charges because the democrat officeholder didn’t like his or her views, are these people now unemployable?

meci on August 16, 2010 at 12:17 PM

Wow, a little overly dramatic. Plenty of convicts get jobs every single day. Well, not in this crappy economy, but before the recession, plenty of convicts had jobs.

Or do you believe that the 5.5% unemployment rate was just all convicts being discriminated against?

ButterflyDragon on August 16, 2010 at 12:23 PM

The subtext appears to be that because minorities supposedly have higher conviction rates then whites, by focusing on convictions these employers are really using conviction as pretext to discriminate against minorities on the basis of race or national origin.

eaglewingz08 on August 16, 2010 at 12:37 PM

This is a tough public policy balance. On one hand, if an employer hires a convicted felon (or someone convicted of a DUI or domestic violence) and that person reoffends on the job, the employer could be subject to significant liability. Anyone harmed by that employee will argue that the employer was negligent or reckless in hiring the ex-con.

But on the other hand, if a felony or DUI or domestic violence conviction becomes a permanent “scarlet letter” that bars that person from ever holding a legitimate job again, you’re going to isolate that person and keep that person poor forever. And guess what? That’s going to make the person more likely to reoffend.

Outlander on August 16, 2010 at 12:45 PM

I will hire or fire ANYONE I CHOOSE. The government can take a hike. Just because they do it in Congress doesn’t make it right. In fact, even less.

griv on August 16, 2010 at 12:46 PM

The subtext appears to be that because minorities supposedly have higher conviction rates then whites, by focusing on convictions these employers are really using conviction as pretext to discriminate against minorities on the basis of race or national origin.

eaglewingz08 on August 16, 2010 at 12:37 PM

Well, either that it’s a pretext or the use of a conviction as a per-se bar on employment amounts to conduct that is facially neutral but has a “disparate impact” on minorities.

Outlander on August 16, 2010 at 12:49 PM

Who is gonna be the first city to place that reformed ex-con in a police uniform?

Freddy on August 16, 2010 at 12:01 PM

Not to be too corny about this, but “Dog the Bounty Hunter” served several years in prison for felony murder back in the 1970s. He does fine.

Outlander on August 16, 2010 at 12:50 PM

I’ve been in the HR part of the business world for over 25 years and this really isn’t all that big a departure from ‘business as usual’ at the EEOC. They’ve always taken an “err on the side of inclusiveness” approach to their task and this decision is no different.

My experience has been that if you have a solid rationale for not hiring someone, especially if you’ve taken the time to do your homework, document how their past experience is lacking in ways which are directly job related as demonstrated by a reading of the job description and minimum qualifications for the position, you should be on relatively solid ground with EEOC. You can argue with them over whether the conviction was of a nature and level of egregiousness to warrant your conclusions, but in the end, the worst they’re going to tell you is that you’ve got to hire the schlub.

But that’s not the real problem here. This stated change in policy will cause many legal firms to set up shop with trial lawyers who have expertise in cases involving people not hired for reasons of a criminal past. Remember that our tort law system has a major failing in that there are few, if any, consequences for filing suit, and these firms are more than willing to taken on these cases on a contingency basis. They get at least 30% of the payout, if there is any, even if they reach an out-of-court settlement with an employer who’s settling just to minimise their costs, and they’re probably going to charge the plaintiff for research, copying and other administrative fees anyway. With a set up like that, why wouldn’t they go trolling for business in a new pond? It’s another line of business and revenue stream for law firms, and just another reason why being in business is becoming increasingly unattractive due to the exposure to legal risk.

martin.hale on August 16, 2010 at 12:55 PM

It’s a tough call for an employer to make, how would they know if the person can be trusted? I’m all for giving someone a chance and a benefit of a doubt but it does put the hirer in a difficult position.

scalleywag on August 16, 2010 at 1:04 PM

Outlander on August 16, 2010 at 12:50 PM

He needs to be arrested again for that hideous mullet.

He looks like a hulked out Bon Jovi.

NoDonkey on August 16, 2010 at 1:10 PM

Sorry, I disagree. Your credit history shows your ability to be trusted with money. You lost that trust when you failed to pay your debts.

angryed on August 16, 2010 at 10:03 AM

That’s just silly. Someone going bankrupt isn’t evidence of their willingness to steal.

sharrukin on August 16, 2010 at 1:16 PM

Funny, you can’t be a felon and a teacher…

Tim Burton on August 16, 2010 at 1:23 PM

Sorry, I disagree. Your credit history shows your ability to be trusted with money. You lost that trust when you failed to pay your debts.

angryed on August 16, 2010 at 10:03 AM

That’s just silly. Someone going bankrupt isn’t evidence of their willingness to steal.

sharrukin on August 16, 2010 at 1:16 PM

Thievery doesn’t seem to be implied.

It could be a sign of incompetence…or not. The idea, of course, is if you as an employer believe it to be pertinent that is your own prerogative.

anuts on August 16, 2010 at 1:29 PM

Over the years, every employee my business had a serious problem with would have been identified by a CORI check. As a result, we now run CORI checks on all employees and new hires and won’t employ anyone who has a record. It’s a rational policy and we’re not changing it, whether the EEOC likes it or not.

cool breeze on August 16, 2010 at 1:37 PM

The idea, of course, is if you as an employer believe it to be pertinent that is your own prerogative.

anuts on August 16, 2010 at 1:29 PM

I agree with that. You should be able to use whatever yardstick you wish IMO. I don’t see the two as connected, but if an employer doesn’t think golfers should be hired he should be able to make that choice.

sharrukin on August 16, 2010 at 1:44 PM

Sorry, I disagree. Your credit history shows your ability to be trusted with money. You lost that trust when you failed to pay your debts.

angryed on August 16, 2010 at 10:03 AM

And your statement shows your ignorance of the many factors that can come into play regarding credit scores and small business owners.

I had a very successful business until I got hit by a double whammy that killed it all leading me to declare bankruptcy and destroying my credit.

First was a large chain store declaring bankruptcy on me, right after I delivered a huge shipment to them. I had to eat over $200k (I was only grossing a little over a million annually at the time)

Right after they declared bankruptcy on me, Clinton tightened the embargo on Haiti, which was where my main supplier was at.

That one-two punch left me reeling and there was no way to recover.

There was no way to predict another company would declare bankruptcy on me. And I never dreamed Clinton was going to totally lock down Haitian imports.

Within a few months time I went from being successful with 12 employees to… well, I guess from your analysis, to one of the untrustworthy who shouldn’t even be allowed to have a job.

ButterflyDragon on August 16, 2010 at 2:27 PM

The point is

at a certain point when does your business become the govs business

at what point are you now a modern day serf

eff these thieving pos’s

not only is it wrong morally, but it guarantees the least efficient use of money

one cares, one does not

we are really close to a breaking point

Sonosam on August 16, 2010 at 3:05 PM

Update: This is not a new [EEOC] policy, so I lose my bet. It goes back at least to 1985, according to documents supplied to me by a source.

Oh, so it’s Clarence Thomas’ fault!

DubiousD on August 16, 2010 at 4:02 PM

I don’t see the outrage here. A strict policy of not hiring people with criminal records would have a disparage impact on blacks because of the much higher black incarceration rate. As racial minorities are a protected group under Title VII of CRA, the burden of proof is on a business to show that such a policy is necessary. A policy of not hiring drivers with recent DWI convictions would be narrow enough to pass muster. Not hiring people with drug convictions as sales manager probably would not.

Race has nothing to do with it. Period. Race doesn’t and shouldn’t matter in hiring decisions. Period.

If I am hiring somebody, I do not judge them based on the statistics of their race, gender or age (or any other attribute over which they have no control), I only judge them based on their attributes over which they do have control and their criminial record is definitely one of those factors.

There is no way _at_all_ that you can justify this (or anything else anymore) as protecting a particular race (which includes the soft bigotry stance that the race needs your protection).

This is just more of the Liberals protecting the guilty while punishing the innocent (which seems to be their unspoken motto).

Theophile on August 17, 2010 at 5:32 AM

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