Employers could be pressured to hire more workers with a criminal background under recent guidelines issued by the federal government.
The Equal Employment Opportunity Commission’s guidelines warn businesses about rejecting minority applicants who have committed a crime and recommend they eliminate policies that “exclude people from employment based on a criminal record.”
The EEOC says civil rights laws already prohibit different treatment for job applicants who are of a different ethnic background but have identical criminal histories. The update was issued out of concern that employers might disproportionally exclude minorities from getting hired because more African Americans and Hispanics are getting arrested and going to prison, according to the guideline report.
But businesses and even one EEOC commissioner strongly objected to the changes, saying they are confusing and go beyond the commission’s authority.
“The only real impact the new guidance will have will be to scare business owners from ever conducting criminal background checks,” said Commissioner Constance Barker, who cast the lone nay vote and was one two George W. Bush appointees on the Democrat-controlled commission at the time. Agency commissioners approved the report in a 4-1 vote in April 2012.
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Though ex-convicts seeking work are not protected under Title VII of the 1964 Civil Rights Act, the EEOC guidelines suggest that rejecting applicants because of their criminal record is not enough.
Instead, businesses must also prove the criminal history would exclude an applicant from a specific job or duties and consider such factors as how long ago the crime was committed.
The guidance tells businesses “they are taking a tremendous risk” by running such checks, Barker added.
The report also says federal law preempts state laws, including ones that would prohibit hiring ex-convict for some jobs, such as home health-care workers. So if companies reject a minority with a criminal history for the health-care job, for example, they now face a potential discrimination suit under Title VII.
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