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EEOC Focuses on Criminal Records
The EEOC's E-RACE Initiative and the agency's more-sophisticated software, combined with an employer's refusal to consider job applicants with arrests or convictions, could result in lawsuits alleging disparate impact on minorities.
The number of people incarcerated in local jails and state and federal prisons in the United States exceeded 2.2 million in 2006, according to the Bureau of Justice Statistics -- almost as many as those making up the entire population of Nevada. Nearly 650,000 inmates are released each year, living and working in communities across the country. Will your company be among those hiring these ex-inmates? A number of incentives are available for companies to encourage hiring ex-inmates and applicants with arrests or convictions on their records. And those incentives can be positive -- such as tax credits -- or possibly, punitive -- such as leaving the company vulnerable to a discrimination lawsuit. Employers can receive a tax credit -- up to $2,400 -- through the Work Opportunity Tax Credit program for hiring former inmates. Likewise, the 42-year-old Federal Bonding Program created by the Department of Labor, which provides incentives to employers to hire ex-offenders and other at-risk applicants, now covers any job in any state. Some municipal governments also offer incentives: The city council in Philadelphia, for example, recently passed a bill encouraging employers to provide jobs for ex-offenders by offering a credit of up to $10,000 annually on the city's business-privilege tax. However, when it comes to reviewing applicants who have arrests or convictions in their pasts, employers should also be wary of potential penalties in addition to incentives. The Equal Employment Opportunity Commission's E-RACE initiative (Eradicating Racism and Colorism from Employment), launched last year, examines employers' hiring processes and specifically considers how employers handle convicted criminals who apply for jobs. According to the agency, the use of arrest records to bar applicants from being considered for employment has a disparate impact on protected groups, such as blacks and Hispanics, who are more likely to have arrest or conviction records than whites, for example. The initiative will scrutinize the criteria on which employers base their hiring decisions, says Michael Cohen, an employment attorney with Wolf Block in Philadelphia. If the EEOC learns that an employer is improperly considering criminal convictions, it promises action, he says. James Ryan, an EEOC spokesman, says the agency does not keep statistics on charges brought against employers' misuse of arrest or conviction records. In addition to criminal backgrounds, E-RACE will also monitor how employers make hiring decisions based on credit checks, employment tests, ZIP codes or geographic areas and other factors, he says. Cheryl Behymer, an employment attorney with Fisher & Phillips in Columbia, S.C., says the E-RACE initiative has been enabled by the EEOC's purchase of sophisticated software that lets it conduct more in-depth analyses of employment and Census data than it could before. "In the past, the agency was more focused on wrongful termination, but today it's focusing on hiring issues as well," she says. "There's nothing wrong with employers looking at arrest and conviction records, but that policy disproportionately impacts people of color." Behymer and Cohen have differing opinions as to how employers should treat job candidates with criminal backgrounds. Cohen says employers are too quick to dismiss applicants based on criminal history, while Behymer says they are not. "I do think many employers tend to over-consider conviction records in the hiring process," says Cohen. However, Behymer says some employers tend to be too negligent in that regard. "I don't think employers are too quick to dismiss applicants with conviction records -- in fact, I think some companies go too far in the opposite direction," she says. "If a company hires someone with a known violent background, that's something that can be used against the employer -- 'You brought this dangerous person into the workplace.' " Meanwhile, both attorneys agree that employers should be wary not only of running afoul of E-RACE but also of state laws and guidelines pertaining to applicants with arrest and conviction records. "In Pennsylvania, the law says the only convictions you're permitted to consider are those related to the job the person is applying for," Cohen says. For example, would a conviction for driving under the influence of alcohol have anything to do with an applicant's ability to serve as an administrative assistant? The answer is no, he says. "Some organizations would argue that a DUI conviction demonstrates bad judgment," says Cohen. "But who among us has not demonstrated bad judgment, and does that mean we're disqualified from any job we apply for?" Most other states have laws or statutes similar to Pennsylvania's, he says. And companies with locations in multiple states must take extra care to ensure their job applications don't run afoul of differing state rules, Behymer says. "Some states have specific language you're required to include, such as informing candidates that they don't have to provide any information on expunged convictions," she says. "If you don't include that language, those states will fault you for it." Employers should also consider putting a statement on their employment applications certifying that the information applicants provide is true and accurate to the best of their ability, says Behymer. "Many states -- even if they have laws that restrict what employers can do with regard to arrest records -- will allow an employer to refuse to hire an applicant who's falsely certified an application," she says. Companies should also ensure that any third parties they use to conduct background checks are using forms that comply with the Fair Credit Reporting Act, says Behymer. Finally, employers should review their job descriptions to see whether they can add safety considerations -- doing this can give them a legitimate reason for denying employment based on a conviction record, she says. "Under that scenario, a DUI would certainly disqualify someone from a job as a forklift driver," she says. Regardless of state laws or initiatives such as E-RACE, Cohen says many employers will continue to turn down applicants with criminal convictions. "It's a risk, but organizations take calculated risks all the time, especially in this area," he says. "You get an applicant with a conviction for sexual assault of a minor -- an employer will often say 'I'm not hiring this person,' regardless of whether the conviction is relevant to the job," he says. "The employer sees it as a risk worth taking, from an employee-relations standpoint, and interestingly enough, suits are rarely filed because the applicant would have to state publicly, 'I'm a sex offender.' "
February 13, 2008 Copyright 2008© LRP Publications |
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