EEOC’s Criminal History Policies Being Questioned

EEOC’s Criminal History Policies Being Questioned

Criminal Background CheckIn June, we told you about the new “Ban the Box” ordinance passed by the City of Seattle, which limits the ability of businesses to inquire about job applicants’ criminal histories.

This hot topic continues to make the news as businesses struggle to balance legitimate safety concerns with restrictions imposed by regulatory agencies and government.

Criminal background check guidelines called into question:

In late July, the Attorneys General in nine states joined together to take a proactive stand against the EEOC’s guidelines on use of criminal background checks.

In particular, they criticized EEOC lawsuits against Dollar General and BMW for violating Title VII of the Civil Rights Act for their blanket bar to employment based on criminal history.  The companies’ policies prohibited the hiring of applicants with convictions for particularly violent crimes.

The EEOC’s position:

The EEOC asserts that blanket criminal history policies have a disparate impact on African-Americans, who have a higher conviction rate.

The EEOC’s policy would require companies to individually consider each job applicant’s criminal background, and would prohibit a bright line approach.  It would expand Title VII protection to former criminals.

The position of the Attorneys General:

The Attorneys General countered that:

An employer may have any number of business-driven reasons for not wanting to hire individuals who have been convicted of rape, assault, child abuse, weapons violations or murder… It might have concerns about the safety of other employees and customers or a desire to minimize the risk of liability.  A criminal background may also be indicative of a lack of dependability, reliability or trustworthiness.

The wrap-up:

As we struggle to understand the horrific shooting at the Navy Yard in Washington, D.C. and how someone with a troubled past could have the clearance and access to work there, we have to weigh that against the restrictions and limitations imposed by government and regulatory agencies.

The 8th Circuit court said:

To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.

And yet, it is also a horribly unjust burden to ask an employer to not only conduct an individual assessment of every job applicant with a criminal history, but to also accurately predict the future behavior of that person, and risk the safety of co-workers and customers based on that prediction.