By ROBB MANDELBAUM
In April, the Equal Employment Opportunity Commission signaled that it would begin to crack down on employers who use the criminal histories of job applicants to discriminate against them illegally. …
The notion that using criminal records in employment decisions could constitute discrimination has been government policy since at least the 1970s. The E.E.O.C. has in the past issued policy statements, called enforcement guidance, about how employers may use criminal records without running afoul of the Civil Rights Act, but in April the agency published new enforcement guidance.
The new guidance “consolidates and supersedes” those earlier policies, the commission said in an accompanying question-and-answer document. And while the underlying theory of what actions constitute discrimination appears not to have changed, labor lawyers say the new policy requires companies to establish procedures to show they are not using criminal records to discriminate by race or national origin.
… Employment discrimination provisions of the act apply to companies with more than 15 employees and define two broad types of discrimination, disparate treatment and disparate impact. …
Disparate impact is more complicated. It essentially means that practices that disproportionately harm racial or ethnic groups protected by the law can be considered discriminatory even if there is no obvious intent to discriminate. In fact, according to the guidance, “evidence of a racially balanced work force will not be enough to disprove disparate impact.”
As the E.E.O.C. establishes in its guidance, members of some minority groups are much more likely to be arrested and convicted than whites. From the commission’s perspective, the Civil Rights Act serves to make certain that disparity is not compounded in the workplace.
In its guidance, the commission warns employers not to use arrest records at all in hiring decisions. …
A conviction, on the other hand, “will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas,” according to the guidance. But convictions seem to have put the E.E.O.C. in a bind. The document cites Department of Justice statistics that show a Hispanic man is nearly three times as likely as a white man to be incarcerated, and an African-American man is nearly six times as likely. In 2008, according to the commission, “African-Americans and Hispanics were more likely than whites to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for whites.”
Uh, what`s their rate of drug dealing? A large fraction of people in jail on “drug possession” charges are drug dealers, just as Al Capone was in jail on tax fraud charges. Forensic chemists are harder for drug dealers to terrify into not testifying against them than are people in their own neighborhoods.
“The underlying assumption is that there’s disproportionate enforcement of the law in minority communities,” said Mr. Stuart, the lawyer.
Under the guidelines, an employer can exclude applicants with criminal convictions provided it can demonstrate that the exclusion is “job-related for the position in question and consistent with business necessity” — a phrase that appears in the law itself and is not defined in the guidance. The easiest way for employers to do that, according to the E.E.O.C., is to develop a “targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job.”
Ideally, Mr. Stuart said, employers would prefer hard-and-fast criteria and a simple yes-or-no answer to a hiring decision. But instead, he said, the E.E.O.C. wants employers to first determine what criminal convictions might rule applicants out for each job and then judge each candidate against the job in question, which could be a painstaking process. Mr. Stuart recommended that employers start by thinking about broad categories of criminality: theft, violent crimes involving felonies, sex crimes, drug crimes.
If employers conclude that on the basis of three factors — the nature of the crime, the time elapsed and the nature of the job — an applicant is ineligible, “then they have to do an individual assessment, and there are eight different factors that the E.E.O.C. says you have to look at,” said Pamela Q. Devata, a Chicago partner in the law firm Seyfarth Shaw. “The employer has to have a dialogue with the individual, or at least give the individual an opportunity to provide a response about the fact that the criminal history makes them unable to do the job.”
Andrea Herran, a human resources consultant in the Chicago area, said that the new procedures would subject small businesses to a legal cross-fire, especially businesses with employees who work in the field. Those companies are potentially liable for the actions of an employee in a client’s home or office.
“It’s almost like you’re being squeezed on both sides of the law,” Ms. Herran said. “If somebody’s making them nervous with their criminal history, and they’re worried about getting sued on the other side, what’s a business owner supposed to do?
Hire as few people as possible is the usual answer.
The next best answer is to demand a college degree or even an advanced degree. The EEOC, which is run 100% by people with college degrees, is mostly fine with that kind of discrimination!
… Even if an employer develops a job-related and business-necessary rationale for excluding some criminal convictions, the exclusion could still be considered discriminatory if there is a less discriminatory alternative that would achieve the same result. For example, Mr. Stuart said, an employer that has a legitimate reason to exclude convicted drug criminals could presumably achieve the same result by screening job candidates with drug tests.
The guidance specifically discourages employers from asking about criminal history on an application, and Mr. Stuart said that he was telling his clients that to avoid a fight, they should wait to ask about criminal convictions “until they have determined that the person is qualified and in the pool of people who would be offered a job.”
Ms. Devata said that when employers did ask about criminal convictions, they should tailor the question narrowly to the job at hand.
Because nobody ever gets promoted. So, don`t try to hire people who are more likely to be promotable if you know what`s good for you.
Ms. Devata warned that the E.E.O.C. seemed to be preparing for battle on this issue. “The E.E.O.C. has indicated that they are already investigating hundreds of charges related to the use of criminal history in employment,” she said. “The implications of that is that the E.E.O.C. has been looking into this area, and will continue to do so, likely with more force and effect, now that the new guidance is out.”
Hiring is an anti-discrimination minefield, and firing even more so, so the best thing to do is to hire as few people as possible and work them really hard.