EEOC Issues New Guidance on Employers Use of Criminal Records
In Employment Process
 Derek Hinton - DOTJobHistory.com

"The nine most terrifying words in the English language are: 'I'm from the government and I'm here to help.'"  - Ronald Regan

On April 25th, the EEOC published 52 pages of new guidance to employers on the use of criminal records when making hiring or retention decisions. The guidance is effective immediately.

The EEOC’s Title VII prohibits employers from using criminal history information to discriminate against job applicants because of their race, color, religion, sex, or national origin.

Disparate Practices
This sounds simple enough. You don’t order criminal records on one race/color/religion/sex/national origin but not another. And if you order criminal records on all applicants, you have the same rules when the results come in regardless of race/color, etc.  A more formal way to put this is you don’t have “disparate practices.”

Disparate Impact
A disparate practice is one thing, but Title VII also prohibits practices that have a disparate impact even if they are apparently neutral or “color blind.” For example, assume you are an employer and receive employment applications by mail. You have an independent third party delete any references to race. In addition, names, all addresses, and any other clues that someone might use to infer an individual’s race are suppressed. Now, assume you order criminal records checks and those found to have a criminal record of any severity are automatically disqualified. You might think that because you did not even know the race of the person being disqualified, you could not possibly be discriminating against minorities. You would be wrong.  The EEOC has noted in its guidance that 1 in 3 African-American males have a criminal record.  Some statistics we have reviewed shows that the rate is 3 out of 4 in some inner cities.  Hispanics also have a higher percentage than the population as a whole. As a society, such a large group cannot be permanently unemployable.  If they cannot obtain employment they have no choice but to continue a life of crime to the detriment of everyone.  On the other hand, the EEOC acknowledges the legitimate concerns of employers regarding the potential risk ex-convicts pose.

Employer Suggestions
The new guidance is not a new law or regulation, but more of a “crack-down” and raising the bar on existing standards. This is not legal advice. That would be a job for your attorney. That said, if in looking at your practices, you have a “blanket”  policy e.g., “we will hire no driver that has a felony conviction in the past 5 years”, you better run it up the flag pole. When you find a criminal record on an applicant, you should do an “individual assessment.” What does an individual assessment consist of? There will be more detail in a later column, but for starters, on any criminal record you should assess the nature and seriousness of the offense, the amount of time since the conviction/release from confinement and how the offense relates to the job.

Driver Suggestions
The fact that you have a criminal record may keep you from getting a particular job, but a criminal record should not automatically disqualify you. You should know what is being reported on you (if the incident has been expunged, or it was an arrest without a conviction 15 years ago, it shouldn’t be showing up) and you should correct any errors before they harm you.

The Old Mailbag

Here is a follow-up response to the latest Old Mailbag, view the original letter here.

I think the letter writer and I are on the same page. He says:

When I received the "courtesy notice' of this violation, the fine was $641 - more than I had. I went to the court without any legal representation, NEVER actually saw the Judge to plead my case, but was able to make a contrite and honest request through the court clerk for a reduction in the fine. 45 minutes later, the clerk returned and told me the Judge had REDUCED my fine to $231, and assessed my DMV Record a point and a half (1 and 1/2). While this "punishment" is present on my DMV Driving Record, and will be there for who knows how long, I am content that I did the right thing. "Fighting" a ticket may not always be the best course of action.

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