No one knew that not hiring someone with a past criminal record could be considered against the Civil Rights Act, but in April the E.E.O.C. published a new enforcement guidance for business owners that includes this very topic. At the same time, it was also announced there will be a crack-down on companies who use the criminal histories of job applicants to discriminate on hiring.
“Many companies that size don’t have an H.R. person and get minimal education about compliance issues,” said Laurence E. Stuart, a labor lawyer in Houston. Similarly, Brian Hamilton, who with his wife owns four car dealerships in Nebraska that employ about 160 people, said, “We have tests that all of our managers take that keep them up to date on labor rules. But I was not aware of that one.”
Believe it or not, using criminal records in the hiring process has been against government policy since the 1970s. However, since April the E.E.O.C. has provided new guidelines as to how criminal records can be properly used without being caught in the trap of discrimination or doing anything suspect against the Civil Rights Act.
The latest guidance overrules past policies according to a question and answer document that accompanies the newest guidelines. The biggest change has little to do with actions that constitute discrimination, and more to do with companies establishing procedures that assure that they are not using criminal records to discriminate against race or national origin.
These guidelines apply to companies with more than fifteen employees and describe the two types of discrimination: Disparate treatment and disparate impact.
Disparate treatment is straightforward and states that it is illegal to treat someone differently on the basis of race or national origin.
Disparate impact is more complicated. According to the guidance, “evidence of a racially balanced work force will not be enough to disprove disparate impact.” This means that it is considered discriminatory to disproportionately harm racial or ethnic groups even if there is no obvious intent to discriminate.
The commission encourages businesses not to look at arrests as proof of criminal conduct, as they don’t always result in charges and convictions. So to base hiring on a criminal record can be considered presumptively discriminatory.
However, an employer can investigate an arrest to discover more information about the situation to see if the person is employable. A conviction will usually serve as sufficient evidence. It is the splitting of hairs that the E.E.O.C. intends to explain so that business owners will understand the difference and discrimination in that arena isn’t so black and white.
Therefore, under the guidance, an employer can choose to eliminate applicants with criminal convictions as long as it can demonstrate the exclusion is “job-related for the position in question and consistent with business necessity”.
The E.E.O.C. suggests development of a screening mechanism that reviews the nature of the crime, the time passed and the nature of the position.