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.