New Advice from Feds on Hiring Those with Arrest Records
It might be time for your organization to review its hiring policy, especially if it excludes job candidates with criminal convictions in their pasts. Newly-expanded U.S. Equal Employment Opportunity Commission guidance, released in April, lists that as an example of possible discrimination.
The guidance elaborates that, for certain jobs, any conviction record will disqualify a candidate by law. At about 40 pages, the expanded enforcement guidance contains more detail on these issues and how they relate to Title VII of the 1964 Civil Rights Act than the original five-page guidance, which was released more than 20 years ago.
Although Title VII does not explicitly protect someone’s ex-offender status against discrimination, EEOC regularly handles complaints based on criminal records because of the disparate impact the practices have on minorities and men.
Industry Groups are Paying Attention
Representatives from the American Subcontractors Association and the Associated General Contractors of America recommend reviewing existing hiring policies to conform to the EEOC guidance.
“Many subcontractors take criminal records into account in at least some employment decisions, and the guidance does establish new policy that refines or even changes how those decisions must be made,” says David Mendes, ASA’s senior director of communications and education.
Tamika Carter, director of AGC’s human resources division, says that the group has followed the EEOC guidance updates closely and will continue to notify members of the developments. “In addition we will be educating our members in more detail about the guidance at AGC's annual HR professionals conference in October,” she says.
The new document includes example cases, notes on state law, and advice on avoiding the appearance of discrimination in hiring.
Look at the Circumstances
According to the guidance, candidate exclusion is not considered discrimination when a conviction is job-related or the exclusion is a business necessity. But what is defined as necessary or job-related may differ between industries and from position to position.
Carol Miaskoff, an EEOC attorney, recommends that employers look closely at the guidance and develop a system to determine what criminal convictions would disqualify candidates.
“You look at, first of all, what is the job? What are the functions and duties in the job?” she says. “What are the circumstances under which the individual will be completing the job and what kind of supervision is there?”