The EEOC’s Hire a Criminal Program!

article by Dr. Larry Phillips, SPHR, management consultant, educator, and author; lwphilli44@gmail.com
9/6/2012

You are the sole owner of Jones Appliance Service, a small corporation providing home appliance repair with a workforce of 25. Your technicians drive company-owned vehicles to customers’ residence and perform repairs on stoves, refrigerators, freezers, etc. You are aware that the company can be held responsible for employee misdeeds while they are on the job. You also are vaguely aware of the legal concept of negligent hiring which means that the company can be held liable for the illegal acts of an employee while on the job if the employee had shown a propensity to engage in those acts in the past and the employer did not use due diligence in the hiring process to properly screen the employee prior to bringing him onboard. 

For this reason you engage in a rigorous pre-employment evolution involving an interview, contacting references, talking to prior employers and conducting a background criminal records check. Because there are so many potential illegal acts that the employee could engage in while on the job, you decide to implement a policy of rejecting any applicant with a criminal arrest or conviction. You believe that these procedures and the policy should provide substantial protection against company liability in case of employee illegal activity. You are probably correct. However, there is one big problem. A company policy of rejecting all applicants arrested for or convicted of a criminal act has been determined to be improper by the equal employment opportunity commission (EEOC) and may, in certain circumstances, violate probations against discrimination contained in Title VII of the civil rights act of 1964. While this ruling does not change the law nor is it mandated to be applied in federal courts, it does establish EEOC policy on the issue and determine how it will investigate and litigate discrimination complaints in the future.  

The EEOC was established by the Civil Rights Act of 1964 as the law’s enforcement agency. It also is responsible for enforcing subsequent workplace discrimination legislation (Equal Pay Act of 1963, Age Discrimination in Employment Act of 1967, etc.). As such, the EEOC investigates charges of discrimination and, if the allegations appear to be true, attempts to bring about a resolution. If the issue cannot be resolved, the EEOC has the authority to file a lawsuit against the employer to protect rights contained in the various employment discrimination laws cited above. The EEOC periodically issues enforcement guidance regarding various provisions of the law. 

On April 25, the EEOC issued, effective immediately, updated enforcement guidance regarding the use of arrest and conviction records in making employment decisions. The issue of using arrest records to exclude candidates is an old issue previously decided. An arrest does not mean that criminal activity has been engaged in. We are innocent until proven guilty and, in general, using arrest records alone is not permissible. However conviction of a criminal act is a different issue and hiring someone with a criminal history could subject Jones Appliance Service to substantial monetary liability should its employees engage in similar illegal activity to the previous conviction while on the job. But a blanket rejection of candidates for a criminal arrest or conviction has been found to be discriminatory by the EEOC because it disproportionately impacts (has a disparate impact) on certain segments of society (largely African American and Hispanic males). 

What is the firm to do? As usual in any legal issue or legal interpretation of law, the answer is not simple and the enforcement guidance document itself is 55 pages of legal mumbo jumbo. However, some basic guidelines should be followed:

• Any policy regarding exclusion of candidates from consideration must be tightly crafted and based on evidence. There must be a business necessity for the exclusion showing that the reason for the exclusion (criminal conviction) is clearly related to performance on the particular job being filled. That exclusion, however, must be based on reputable statistical research that there is a correlation between the felony conviction and subsequent illegal action of the same type. To not have this type of evidence sets the company up for potential disparate impact complaints as discussed previously. 

• The timeframe for exclusion from consideration must be reasonable. To ban someone for a lifetime because of a conviction does not take into account rehabilitation. As time passes, the person is probably less likely to engage in that illegal behavior again and that time is likely to depend on the time of illegal behavior engaged in. There are research studies specific to certain types of illegal behavior that can be consulted. 

• The firm might consider a policy of advising applicants that they are being excluded because of their criminal record and provide an opportunity for them to appeal that decision.

• A company must be consistent in how it applies the policy and in the procedures it follows. It must not apply one standard to one demographic group and a different one to another. This is disparate treatment and shows discriminatory intent. 

This guidance from EEOC is new and provides a bit of a slippery slope for small employers in particular who lack both the time and sophistication to craft a fully defensible policy and procedure for hiring new employees. Good luck!  



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