Equal employment for criminals

April 30, 2012

By Katy Grimes

A recent decision by the federal Equal Employment Opportunity Commission is about to undo many decades of law, while taking rights away from employers–again.

Using the well-worn “level the playing field” adage, the EEOC just ruled 4-1, that employers cannot use a criminal background check, or a job applicant’s criminal record, when making an employment decision.

Criminals now have more employment protections than law-abiding citizens.

Under the very rule of law they have violated, those with criminal records are now the tail wagging the dog thanks to the federal government.

The EEOC said that while employers may legally consider criminal records in some hiring decisions, maintaining a hiring policy that excludes all applicants with a conviction record is a  violation of employment discrimination laws because it could have a “disparate impact on racial and ethnic minorities, who have higher arrest and conviction rates than whites.”

The EEOC also “recommends” that employers not ask about past convictions on job applications.

In a nutshell, to the EEOC, it is discrimination that ethnic minorities have higher conviction rates than whites, and employers be damned.

Read for EEOC decision for yourself:

“In the last twenty years, there has been a significant increase in the number of Americans who have had contact³ with the criminal justice system⁴ and, concomitantly, a major increase in the number of people with criminal records in the working-age population.⁵ In 1991, only 1.8% of the adult population had served time in prison.⁶After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).⁷ By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail.⁸ The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if incarceration rates do not decrease, approximately 6.6% of all persons born in the United States in 2001 will serve time in state or federal prison during their lifetimes.⁹

Arrest and incarceration rates are particularly high for African American and Hispanic men.¹⁰ African Americans and Hispanics¹¹ are arrested at a rate that is 2 to 3 times their proportion of the general population.¹² Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime;¹³ by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.¹⁴

Employers have few tools left with which to judge job applicants, particularly entry-level or unskilled job seekers. In California, background checks already cannot be used unless there is a job-related reason.

However, any employer seeking to hire a driver, heavy equipment operator, or a manager, needs to know who they are dealing with, and whether the applicant has any legal skeletons hiding in their closets.

An employer seeking to hire a bookkeeper has every legal right to know if that bookkeeper has an embezzlement conviction before making a job offer.

10 years ago when I worked as a Human Resource manager, I discovered that a part-time accounting department employee had been quietly embezzling from the company. She was very clever. She had hacked into the payroll system and hid her theft by increasing her vacation accruals and payouts, and added extra hours onto her paycheck every two weeks. It wasn’t until she got greedy that she got caught because the amounts were small.

My company prosecuted and won a civil judgment against her. The purpose was to hopefully prevent any future employer from hiring her in a position handling money, or with access to financial accounts. And the judgement would prevent her from obtaining a professional license in California.

This was no school girl prank–this young woman knew what she was doing and had very carefully covered her tracks.

With the new EEOC ruling, this woman, who always managed to obtain jobs handling money, or with access to bank accounts, could get another such job.

The EEOC has just given a huge gift to employment lawyers. What a surprise. Even with the EEOC “recommendations,” lawyers can and will file lawsuits against employers anytime someone with a criminal record feels discriminated against during a job interview, whether there is evidence or not.

An employer may fight a charge of discrimination. “During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).”

However, the EEOC also states “An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact.”

But employers must hire legal counsel in order to defend charges of discrimination. And legal fees add up quickly when dealing with government agencies.

Employers are under assault in America, and California employers have been under siege for decades. It has gotten to the point where an employer must keep a law firm on retainer to fight off the hundreds and hundreds of legal assaults just waiting to happen.

The rule of law has just been greatly degraded, and disgraced, again.