EEOC Examines Arrest and Conviction Records as a Hiring Barrier

July 26, 2011

jail

On July 26, 2011 the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss the employment barriers faced by individuals with arrest and conviction records.

A recap of the meeting can be found here.

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Is Your Employee Background Screening Policy Up To Date?

April 8, 2010

accenture

Employment law firm Outten & Golden LLP just released this news:

Accenture Sued for Discrimination Over Background Checks

Accenture, one of the largest management consulting firms in the world, conducts background checks that discriminate against African Americans and Latinos, a class action lawsuit filed in New York federal court today alleges.

The lawsuit, filed on behalf of Roberto J. Arroyo, of Morristown, N.J., accuses Accenture of violating Title VII of the Civil Rights Act of 1964 by rejecting or firing qualified individuals who have criminal records even where the criminal history has no bearing on the individual’s fitness or ability to perform the job.

According to the Complaint, “Such policies and practices are illegal because they adopt and perpetuate the racial disparities in the American criminal justice system … For decades, the Supreme Court and the EEOC have recognized that overly broad restrictions on hiring individuals with criminal records are discriminatory and illegal.”

Employers Must Revisit Their Hiring Policies to Incorporate Ex-Offenders into the Workplace

Melissa E. Pierre-Louis, an associate at Outten & Golden LLP, offers excellent advice to employers in an article published in an American Bar Association Labor Employment Law Flash in February 2010:

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance regarding the steps employers must take to avoid liability. The EEOC advises employers to undertake three steps in determining whether to screen out a candidate with a criminal conviction.

  1. The employer must consider the nature and gravity of the offense.
  2. The employer must consider the length of time that has passed since the conviction.
  3. The employer must consider the relationship of the conviction to the particular duties and responsibilities of the job in question.

The massive rise in incarceration rates in the past few decades, coupled with efforts by advocates and the Obama administration to help offenders “reenter” society, means that employers will likely see a significant increase in the number of ex-offenders in their applicant pool in the coming years.

Employers who continue to apply blanket bans on hiring ex-offenders or who fail to implement hiring criteria that take into account the nature of the offense and its relationship to the job face significant exposure to charges of race discrimination.

“Simply put, now is the time for employers to align their policies with state and federal requirements.”

Proper planning, legal review, and prompt implementation are critical to avoid liability. As a first step, employers should revisit their hiring policies in light of EEOC guidance. In addition, employers should become aware of the protections afforded to ex-offenders by state law. For example, New York State and City law offer greater protections to applicants with criminal convictions. They prohibit employers from turning down an applicant because of his criminal conviction unless the employer undertakes a case-by-cases evaluation of each applicant and can show that there is a “direct relationship” between the applicant’s prior offense and the employment sought or that employment of the applicant would pose an unreasonable risk to property or the public.

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