EEOC CHALLENGES BLANKET POLICIES AGAINST HIRING FORMER CONVICTS
When screening job applicants, employers routinely inquire about an applicant’s criminal record. While such inquiries are permissible, an across the board policy against hiring people with criminal convictions may not be.
Data shows that certain minority groups are disproportionately represented among the ranks of people with criminal convictions. Accordingly, a blanket policy against hiring people with convictions is statistically more likely to discourage hiring among those minority groups. Because of the “disparate impact” these policies can have on minority groups, they are coming under fire from the United States Equal Employment Opportunity Commission (“EEOC”).
Speaking at a recent meeting of the Labor and Employment Law Section of the State Bar of Michigan, the regional field director for the Detroit office of the EEOC announced plans to challenge employers with blanket policies against hiring applicants with criminal records. The Detroit office of the EEOC has already commenced litigation in federal court in Grand Rapids against a retail chain that follows such a policy.
Employers will be wise to review their own policies and hiring practices. Decisions based on criminal history should be made on a case-by-case basis and only where there is a rational, specific correlation between a criminal conviction and the applicant’s ability to perform the job at issue. For example, someone convicted of embezzling funds can safely be ruled out as an applicant for a cashier’s position. Someone with a fifteen-year-old conviction for drunk driving cannot be as easily eliminated from consideration for that same cashier’s position.
One option for passing the EEOC’s scrutiny is to make a job offer provisional pending a criminal background check. By delaying the inquiry into the criminal history until after an applicant has been found otherwise qualified for the job, the employer minimizes the risk of being found to have used criminal history as an excuse for eliminating qualified applicants based on race.