A few days ago, on July 26, the U.S. Equal Employment Opportunity Commission (EEOC) held a meeting in Washington, D.C. to discuss the use of criminal records for employment screening purposes. All five Commissioners and the EEOC’s General Counsels attended this critical public meeting, which represented a step in the Commission’s adoption of policies that could significantly affect the use of criminal history information in denying employment. In this hearing, panels of experts including academics, lawyers, and government officials presented their views to the Commission. Some experts posited that employers’ tendency to refuse to hire people with arrest and conviction records—even years after they have completed their sentences—is leading to recidivism and higher social services costs. Others detailed the confusing and often contradictory pressures on businesses, including conflicting laws, when using arrest and conviction records in making employment decisions.
Though the EEOC is known for its “aggressive” approach to defending job applicants against discrimination, with the recent meeting the Commission has demonstrated a conciliatory, rather than adversarial, attitude towards businesses conducting background checks on their prospective employees. According to EEOC Chair Jacqueline A. Berrien, the meeting provided an opportunity to “learn about the practical ways employers have been able to balance business concerns with the need to ensure that employment practices are fair and non-discriminatory.” The concept of striking a balance between workplace security concerns and applicant rights is also reflected in the title of the EEOC’s press release on the meeting: “Striking the Balance between Workplace Fairness and Workplace Safety.”
At a previous meeting convened by the EEOC in November 2008, attorney Laura Moskowitz explained, “The stark racial disparities in our criminal justice system mean that hiring policies that screen for criminal records will have a disparate impact on African Americans and Latinos, classes of workers that the Commission is charged with protecting under Title VII of the Civil Rights Act of 1964.” She also acknowledged the challenges businesses face in maintaining fair and compliant hiring policies and practices, remarking that “employers are often bombarded with information about their potential liability for negligent hiring, but they receive little guidance on how to make sound and fair hiring decisions that comply with Title VII.” The problems the EEOC and their panels continue to address in their series of hearings could therefore be attributed to a need for compliance education/consultation. One could argue that there is nothing inherently wrong with running criminal checks on applicants (where permissible by law and with proper consent), as long as employers are aware of the legal restrictions on utilizing the information uncovered and proceed with caution in making hiring decisions.
The current legal landscape surrounding pre-employment background checks can be confusing and treacherous to navigate. The EEOC has warned employers against adopting “blanket policies” that summarily bar all individuals with arrest/conviction records from being considered for employment; in fact, the agency has brought several lawsuits against employers who are perceived to use such policies. To complicate matters, in addition to the EEOC’s becoming stricter, many states and cities have recently imposed laws and restrictions surrounding employment screening. For example, Hawaii, Illinois, Oregon and Washington have generally prohibited the use of credit reports in the hiring process, and other states have proposed similar bills. Additionally, the “Ban the Box” movement has been gaining momentum across the country: Connecticut, Hawaii, Massachusetts, Minnesota and New Mexico have all passed legislation prohibiting the use of job application forms that require candidates to check a box if they have been convicted of a crime. The “Ban the Box” initiative has also spread to local jurisdictions such as Atlanta, Austin, Chicago, Philadelphia, San Francisco, and Seattle, which have enacted or proposed similar measures.
Rather than being regarded as a barrier to employment for individuals from protected classes, background screening providers could be seen as an ally to agencies such as the EEOC, helping maintain the much-needed “balance” between business concerns and applicant rights. In a consultative partnership, employers can use accredited, reputable screening providers such as Accurate Background as a resource (in addition to their own legal counsel) to provide information pertaining to the ever-changing compliance landscape.