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Synopsis Of EEOC Meeting - Arrest And Conviction Records As A Barrier To Employment

describe the imageOn July 20, 2011, EBI sent our clients and newsroom readers a blog post, “EEOC Meeting On The Use of Criminal Record for Background Checks.”  As a follow-up to this post, EBI is providing a synopsis of that public hearing that took place at the Equal Employment Opportunity Commission’s (EEOC) headquarters in Washington, DC on July 26th.  The focus of this meeting was entitled “Arrest and Conviction Records as a Barrier to Employment”.  The meeting was attended by all five EEOC Commissioners and an audience of approximately 250 to 300 interested parties which was a record attendance for an EEOC monthly meeting.  There were three panel discussions and witnesses that directly or indirectly urged the EEOC to revise its guidance on the use of arrest and conviction records in employment screening.  It was the opinion of many that one’s criminal history serves as a barrier to employment which in-turn leads to a higher rate of recidivism.  It is also the opinion of many of the witnesses and interested parties that gainful employment of ex-offenders would in-turn reduce recidivism.

The following was the focus and participants of the three panel discussions:

  • “Best Practices for Employers” included representatives from the DC Central Kitchen, Portfolio Hotels & Resorts and the U.S. Office of Personnel Management.
  • “An Overview of Local, State and Federal Programs and Policies” included witnesses from the Department of Justice, Office of Justice Program and the New Jersey Institute for Social Justice.
  • “Legal Standards Governing Employers’ Consideration of Criminal Arrest and Conviction Records” included a Latino Justice, one attorney representing the plaintiff’s bar and another attorney loosely representing the employer community. 

The Need To Further Educate The EEOC And Interested Parties
For some time, The EEOC has been exploring the issue of the use of arrest and conviction records in employment background checks. The overall meeting presented an incomplete picture of background screening as many were left with the impression that employers may regularly use online searches or even social media to research job candidates and that an applicant had no meaningful recourse that addressed adverse action taken against them when criminal records information was being considered or used for employment purposes.  As employers are aware when they use a Consumer Reporting Agency/Background Screening Firm, this process is clearly defined by the “Fair Credit Reporting Act” and through applicant/employee notification of their “Summary of Rights Under The FCRA.”  In addition, this entire process is already regulated and monitored by the Federal Trade Commission (FTC).  The point and outcome from this meeting leaves us all to wonder if the EEOC is going to consider future time limitation on the use of criminal records information.  On the positive side, there is a further opportunity to educate the EEOC and other interested parties on the true and current best practice that employers are using background checks under federal law.

The basis of the meeting overshadowed the true use of background screening and provided no balance with witnesses presenting the advantages of background screening in terms of victims of workplace violence, theft, other crimes or safety and security risks from not screening. There was no opportunity for witnesses to fully explain the need and value of appropriately conducting criminal history checks by employers and the critical role the background screening industry plays in the hiring and retention process. 

Further Consideration For The EEOC
The EEOC enforces federal laws prohibiting employment discrimination and the commission’s main concern is whether employers are using arrest and conviction records in a manner that violates Title VII of the Civil Rights Act of 1964.  

The focus of the EEOC appears to be the Commissions’ desire to revise its guidance as a primary concern with the high rate of recidivism and the need for successful re-entry of ex-offenders.  The commission may revisit factors of job relatedness and business necessity factors which employers must take a closer look at the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred.  Additional consideration may focus on the following factors of one’s rehabilitation, individualized assessments, and the placement of timelines on length of time that criminal history records can be used.

Next Steps To Be Taken On Our Behalf
The National Association of Professional Background Screeners (NAPBS), along with EBI and other interested parties, will be filing additional comments on the outcome of this meeting directly to the EEOC.  We will keep you posted of further actions and outcome of our efforts.

Additional EEOC Resources
Employers are reminded to utilize the following resources published by the EEOC when making hiring decisions based on criminal records information.  You can find these resources located on the EEOC’s website.

EEOC Policy Statement On The Use Of Criminal Convictions

EEOC Policy Guidance On The Consideration Of Arrest Records

EEOC Policy Guidance On The Use Of Conviction And Arrest Records

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Robert Capwell

EBI’s Chief Knowledge Officer, Mr. Robert E. Capwell, is considered one of the leading experts in the background screening industry with over 22 years of experience in the field. Mr. Capwell was a contributing author of the second edition of the ASIS Pre-employment Background Screening Guidelines and has written numerous articles and whitepapers for various publications including a periodic column on background screening for The Society for Human Resource Management (SHRM) Online. He has been quoted in The Wall Street Journal, Human Resource Executive Magazine, Entrepreneur Magazine, and several HR-related publications. Mr. Capwell speaks regularly to industry colleagues and HR Professionals both nationally and internationally.