Updated EEOC Guidance on Criminal Records: Neither the Apocalypse nor the Total Solution

Last week, the federal Equal Employment Opportunity Commission issued updated guidance on employers’ use of criminal records to screen potential employees. On the day the guidance was published, we applauded the EEOC for helping to balance the civil rights of workers with the legitimate concerns of employers. Now that the dust has settled, some groups have complained that the EEOC guidance creates new law that will prevent employers from ensuring safety in the workplace. Are those criticisms well-founded? In a word: no.

The EEOC’s guidance does not create new law. It explains and reaffirms what the law has required for at least two decades. It says, in a nutshell:

1. Employers cannot deny a job simply because a person has been arrested, because an arrest does not prove that a person engaged in any conduct. Instead, an employer must consider all of the facts and give a person the chance to explain before taking action based on an arrest.

2. Employers cannot automatically refuse to consider applications from people with criminal records. Instead, they can develop targeted screens that filter out applicants whose convictions prove they will not be good employees. In developing those screens, employers must take into account at least the nature of the conviction, the particular duties of the job, and the time that has passed since the conviction.

What does that mean, in practical terms? It means that employers can still do background checks, ask potential applicants about criminal history, and screen out applicants whose criminal histories make clear they pose a risk. It simply reminds employers they can’t deny everyone who has a criminal record an opportunity to apply for every position.

Importantly, the EEOC explains how employers can structure their hiring to comply with the law. It recommends employers do their homework, and consider carefully the types of questions they ask on applications and the types of records they request. It recommends employers notify applicants who may be denied because of a criminal record and then give the applicant an opportunity to explain and submit additional information before the employer makes its decision. Employers who follow these recommendations are unlikely to violate federal law.

Yet, the EEOC’s guidance, while important, does not present a comprehensive solution to the multiple barriers to employment facing people with criminal records. More than 65 million Americans have a criminal record, and over 90 percent of employers report doing background checks on some or all applicants. As the National Consumer Law Center recently highlighted, those background checks are frequently rife with errors. In addition, a growing number of federal, state and municipal employment licensing laws make it harder and harder for people with criminal records to enter a number of professions. We should applaud the EEOC for its efforts to shine the spotlight on this issue and to enforce existing laws, but continue to fight to remove unfair barriers for people who have moved beyond their pasts.

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