EEOC Weighs Need for Hiring Guidelines Revisions

By Dana Wilkie Aug 2, 2011
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Recidivism, public safety, the high cost of incarceration and the health of society at large are just a few reasons the federal government should revise guidelines for how employers use arrest and conviction records when making hiring decisions, witnesses told the U.S. Equal Employment Opportunity Commission (EEOC) during a July 26, 2011, meeting hosted by the EEOC in Washington, D.C.

During the meeting, commissioners—who are mulling whether to revise federal guidelines on hiring ex-offenders—heard from those who’ve hired former prisoners, from government policy experts, from employment lawyers and from plaintiffs’ attorneys.

Barry A. Hartstein, a shareholder with the employment law firm of Littler Mendelson, was one of nine speakers at the meeting but the only one to caution commissioners against “more detailed and perhaps more complicated” guidelines that could paralyze employers worried that even discussing a job applicant’s criminal record might incite discrimination lawsuits.

“Employers have implemented criminal background checks for a wide variety of reasons and for particular types of positions,” said Hartstein, who referred to a 2010 Society for Human Resource Management (SHRM) survey that found employers conduct criminal background checks most often to ensure a safe work environment for employees, to reduce legal liability for negligent hiring and to reduce or prevent criminal activity in the workplace. “From my experience, criminal background checks never have been designed as an exclusionary tool to circumvent our laws prohibiting discrimination in the workplace,” said Hartstein.

In addition, the SHRM survey found that employers use this information when filling jobs that involve national defense, homeland security, health care, the safety of others and working with children, the elderly or the disabled.

Several states limit employers’ use of arrest and conviction records through laws and rules that forbid employers from asking applicants about arrests or by restricting employers’ use of conviction data when making hiring decisions.

But there is no federal law that clearly forbids employers from asking about arrest and conviction records. Instead, EEOC guidelines advise that employers:

  • Can’t assume that someone committed a crime based solely on an arrest record.
  • Should give applicants a chance to explain the circumstances of an arrest.
  • Should take into account the nature and seriousness of the arrest or conviction, as well as how long ago it happened, and should deny employment only if it appears the applicant can’t be trusted to perform the job.

Commissioners made no decision about adopting new guidelines, though Commissioner Constance S. Barker summed up the complicated nature of the issue in her opening statement:

“We are very much a nation of second chances,” she said. “At the same time … that has to be weighed … against protection of the innocent and the vulnerable, particularly children.”

The five commissioners listened to staggering statistics: 65 million U.S. adults have criminal records. Each year, more than 700,000 ex-offenders are released. Of those released back into the D.C. area, almost three in four will return to prison—in large part, several speakers asserted, because they turn to crime when they can’t find jobs.

Mike Curtin, CEO of D.C. Central Kitchen, told commissioners that his organization’s 16-week course on professional kitchen work graduated 91 students last year—71 of them ex-offenders.

“Simple math will tell you that training, employing or providing employment for those folks saved our community at least $2.4 million in incarceration costs,” said Curtin, noting that while the recidivism rate for D.C.-area offenders released from prison is 73 percent, the kitchen’s rate is only 2 percent. “Those ex-offenders made approximately $2 million in wages, contributing another $100,000 in payroll taxes alone. Of course there is the enormous associated spinoff revenue: They are out of supported housing, paying rent, buying food, buying clothes, going to the movies and supporting their families.”

Victoria Kane, area director for labor relations and integration at Portfolio Hotels & Resorts, said employers can manage negative public perceptions about hiring ex-offenders by demonstrating how such hiring benefits the community and providing support programs for ex-convicts.

Several witnesses noted that because the prison population tends to be mostly male and black or Hispanic, the impact of an ex-offender’s joblessness falls disproportionately on minority families.

However, “This discussion is not about giving preference to this population when it comes to jobs,” said Amy Solomon, senior advisor to the assistant attorney general in the U.S. Justice Department’s Office of Justice Programs. “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.”

Stephen Saltzburg, a past chairman of the American Bar Association, pointed out that a decade ago it was difficult to find prosecutors who supported giving jobs to ex-felons. Now, he said, prosecutors tend to recognize that “if we don’t worry about this, we’re not only treating people unfairly, we’re treating the community unfairly.”

Dana Wilkie is a freelance writer based in Alexandria, Va.

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