RECAP: EEOC “Arrest and Conviction Records as a Barrier to Employment” Hearing

9/6/2011By Joan W. Buchanan, SPHR

On July 26th the EEOC held a meeting to examine bars to employing people with arrest and conviction records

On July 26th, 2011 in Washington D.C., the Equal Employment Opportunity Commission held a public hearing that addressed the use of arrest and conviction records in hiring decisions. The meeting was part of a series assembled by the EEOC to examine implications of different hiring practices. The use of criminal records in making hiring decisions is complicated because of the balance necessary between the need for public and workplace safety and society’s innate desire to give people second chances.

The 250+ person included the attendance of all five Commissioners. There were also attendees from several associations including the National Association of Professional Background Screeners (NAPBS), the American Hospital Association, the HR Policy Association, the National Federation of Independent Business, and the U.S. Chamber of Commerce.

There was strong support for the belief that removing arbitrary bars to employing convicted persons can improve job availability and lower crime and social costs. Area Director of Labor Relations & Integration at Portfolio Hotels & Resorts, Victoria Kane, argued that career options for the formerly incarcerated are too limited and that ultimately results in recidivism. Kane suggested in order to overcome hiring challenges, employers should engage in developing and implementing a “Responsible Business Plan” and move past fears, biases, and unspoken concerns that come with hiring a person with a criminal record.

Amy Solomon, Senior Advisor to the Assistant Attorney General with the Office of Justice Programs within the U.S. Department of Justice, pointed out that one-third of felony arrests never lead to conviction but many of those arrests without convictions do show up on a criminal background check. A study funded by the Department of Justice’s National Institute of Justice found that a criminal record reduces the likelihood of a job callback or offer by about 50 percent. This consequence was substantially greater for African Americans and Latinos. Solomon also reminded people that “the goal is simply to give these individuals an opportunity to apply and be considered for jobs for which they are qualified and for which their criminal record is not relevant or occurred long in the past. If we want people with past criminal involvement to be able to support themselves, support their families, pay their taxes, and contribute to their communities and the economy, they need to be able to compete for legitimate work opportunities.”

Also addressed were the existence of confusing and often contradictory pressures on businesses when using arrest and conviction records in making employment decisions, including conflicting laws. For example, in some states people may receive training in prison for careers in barbering and cosmetology, supported by government and taxpayers.  However, once released, these individuals may actually be barred from obtaining their licenses and employment in those fields because of their conviction records. Another example provided by Cornell William Brooks, the Executive Director of the New Jersey Institute for Social Justice, included a young, single African American mother who lost her job after two years of solid and satisfactory service because the organization obtained a state contract that barred employment of anyone with a conviction record.

Adam Klein, a Partner with Outten & Golden LLP, acknowledged employers’ increasing reliance on computer-database background investigations for employee selection. These include a number of data-collection agencies that provide inexpensive but often inaccurate or difficult-to-interpret information. Klein stated that “[when referring to criminal records] employers should be required to make a detailed inquiry and consider any rehabilitation or good conduct since the offense.” He and others also urged that an individual’s criminal history in the employment setting must be put in the proper context and an employer must consider a number of factors such as the relation of the crime to the job, the amount of time that has passed since the crime, the applicant’s age at the time of the criminal offense(s), etc.

Most recognize that criminal background checks were not designed as an exclusionary tool and that employers have implemented criminal background checks for a wide variety of reasons and/or particular types of positions. And the criminal background report alone is not the only barrier to employment, but how an employer uses the report to either make or not make a careful, informed decision is a factor as well. While businesses cannot afford to be involved in a suit for negligent hiring, overly restrictive hiring and unjustified barriers to people with criminal records that may not be related to the job or are inaccurate can be a cost to the organization as well. Illinois has tried to find a middle ground by using certificates of rehabilitation. Ex-offenders can apply for a certificate and, if they meet a set of factors, they can obtain a certificate that immunizes employers from negligent hiring law suits.

Further recommendations to the EEOC called for the Commission to work pro-actively with various stakeholders, including the employer community, in creating opportunities to discuss best practices based on its role as a leader in the equal employment opportunity community. It was also suggested that the EEOC continue to leverage its local partnerships to improve its educational outreach to small businesses.

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Ellen Lawrence, Author.

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