On April 25, 2012, the Equal Employment Opportunity Commission (EEOC), by a four to one vote, enacted regulations that directly affect company hiring policies and practices. Hiring managers not in the know or playing on a discriminatory field, you best listen up. For individuals with an arrest or conviction, the following information and tools are dedicated to you.
As of recent, companies instituting a “blanket ban” elimination policy that targets potential employees who happen to have an arrest or conviction in their background, those days of instant slicing are numbered.
Fact: New EEOC regulations no longer allow companies to automatically eliminate candidates on the basis of an arrest.
This single act affects an estimated 65 million United States adults (not to mention their families) who are saddled by a criminal record. Before getting overly emotional (as the pendulum swings), companies still make their own decisions when it comes to hiring. When it comes to considering ex-felons, company policy and agents must now consider business necessity.
Fairly easy to follow and defined by the EEOC, employers are obligated to examine three factors in making an employment decision:
1. The nature and gravity of the offense
2. The time that has passed since the conviction and/or sentenced completion
3. The nature of the job held or sought
For individuals with a career barrier, these new rulings are aimed to give you an opportunity to explain a report of criminal activity before being rejected. Knowing identity and information errors occur, an opportunity to explain could resolve hesitation before it gets out of control.
Wondering if there is bite to the EEOC bark? Ask Pepsi Co. Due to discriminatory hiring practices, Pepsi Co. recently settled litigation and agreed to pay 300 African American males a total of $3.13 million.
By way of specifics, Pepsi’s old policy screened out applicants who had been arrested but never convicted, applicants convicted for minor offenses, and applicants convicted decades earlier. The EEOC found that Pepsi’s policy violated Title VII of the 1964 Civil Rights Act, which prohibits any form of employment discrimination based on race, gender, national origin, and other protected categories.
The EEOC based its finding of a Title VII violation on the fact that African Americans are more likely to be barred by Pepsi’s old policy than other demographic groups. According to the FBI’s annual crime report, African Americans represent 28.3 percent of all arrests in the United States—yet only 12.9 percent of the U.S. population.
By way of summary, highlights of the EEOC’s new criminal record guidance is as follows:
- Firing existing employees with no performance or safety issues because a new employer taking over a business learns of a record when conducting background checks of the workforce;
- The three “business necessity” factors (age of the offense, seriousness of the offense, and the relationship to the job) contained in the EEOC’s 1987 convictions policy;
- On line applications that kick people out when they indicate that they have a criminal record are no longer an acceptable hiring practice;
- The conclusion that across-the-board exclusions usually violate Title VII; and
- The prohibition against considering arrests that have not led to convictions
Does this mean companies must hire individuals possessing an arrest or conviction? Title VII does not regulate the acquisition of criminal history information. However, another federal law, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA), does establish several procedures for employers to follow when they obtain criminal history information from third-party consumer reporting agencies.
Let’s review the landscape by detailing a few statistics as to why this ruling is significant:
- One in 29 adults between the ages of 20 and 34 in the U.S. is behind bars, for black males in that age group the figure jumps to 1 in 9
- Nationwide, 13 percent of black men have lost the right to vote, a rate that is seven times the national average
- One in every 99 U.S. adults are behind bars
- Fifty percent of all ex-offenders are unemployed
- The U.S. prison population is currently 2.3 million individuals
- 1 in 35 citizens have been arrested, convicted, and/or imprisoned
Making fair employment decisions based upon a candidate’s knowledge, skills, and abilities just lost an elimination loophole.
Heed the EEOC warning: Companies not on the square and relying on a blanket ban to discriminate against qualified ex-felons may find themselves with more than a slap on the hand.
On a professional note, I recently conducted workshops at two national conferences (NACE and APSCU) where we discussed “guiding students with career barriers.” Few career directors in the audience were aware of the EEOC changes, which was surprising. Fortunately many at the conference have been empowered by knowledge and are better equipped to inform and assist companies to modify their hiring procedures.
For those not in attendance, ignorance of EEOC regulations is not a defense.
Individuals with an arrest or criminal background, there is hope as well as many resources you can use to better equip and sell yourself as well as enhance the chances of gaining and succeeding in an interview. One such tool is found through a “letter of explanation.”
A letter of explanation is a single-page account defining the circumstances surrounding a specific incident. This powerful asset (when written properly) desensitizes interviewer objections by outlining personal/professional growth. For more information on this topic and our career-barrier focused booklet designed to assist ex-felons gain employment as well as information regarding our diverse career courseware library dedicated to career success, visit www.edu-cs.com or go to Amazon (search Danny at ECS).
Danny Hufman, MA, CEIP, CPRW, CPCC
Got Twitter? Shadow me @dannyatecs