May 22, 2013

The U.S. Commission on Civil Rights (USCCR) held a briefing in December 2012 to assess the impact of criminal background checks and the EEOC’s guidance on the consideration of arrest and conviction records in enforcement decisions under Title VII and its impact on the employment of black and Hispanic workers. Hire Image, along with the National Association of Professional Background Screeners (NAPBS) and many other like-minded organizations, signed a letter to the commission to provide insight into the defects of the Guidance – defects that discourage responsible use of criminal background checks. The letter was quite lengthy but highlighted the lack of transparency in issuing the guidance as well as the failure to weigh the important societal interests served by criminal background checks. The USCCR received so many letters that they have been unable to post them online.  We have reproduced the letter here.

Peter Kirsanow, a member of the US Commission on Civil Rights and a partner in the Labor and Employment Practice Group of Benesch wrote the following in a recent article in the National Review Online (January 2013):

At a hearing last month before the U.S.Commission on Civil Rights about the EEOC’s background check guidance, the EEOC’s representative acknowledged that the agency has no studies regarding the job performances of ex-offenders compared to non-offenders. There’s no statistical evidence to support or disprove the EEOC’s theory that the use of criminal background checks unlawfully disadvantages one group (ex-offenders) that would otherwise perform just as well as another group (non-offenders). In other words, the EEOC’s guidance is based on a hunch.

Mr. Kirsanow recently spoke at the NAPBS Conference in Alexandria, VA (May 2013) and shared his views on the flawed guidance and inability of employers to comply with the EEOC’s suggested best practices. EEOC Commissioner Constance Barker was also a featured speaker at the NAPBS Conference. She shared the difficulties employers face complying with the new rules. She gave an example of an 18 wheeler driver for a transportation company who had previously been convicted of rape. The driver picked up a hitchhiker and raped and beat her. How would that employer have been able to prove that being a rapist or not is job related? The courts would hold little deference to the EEOC’s guidance in a negligent hiring lawsuit based upon the above crime.

Commissioner Barker was the lone EEOC Commissioner to vote against the guidance. In her public testimony she objected based upon four fundamental reasons:

1) Lack of Transparency in the approval process. The Guidance has tremendous impact on the American people yet the Commission is set about approving Guidance without the input of Americans who have expertise in this area.

2) Senate Appropriations Committee had raised concerns about the haste with which the Commission was proposing to change the Guidance. They specifically requested the Commission to engage stakeholders and to circulate any proposals for public input at least six months prior to voting on changes. The Commission ignored this request.

3) The Guidance exceeds the EEOC’s authority as a regulatory commission. The Commission’s job is to explain what is already law, not to expand it. It is Congress’ job to change the laws and the courts job to interpret the laws. The Commission does not have the authority to provide additional protections under Title VII, it is Congress’ job.

4) The tremendous burden the Guidance places on businesses. The Guidance puts businesses between a rock and a hard place. On the one hand, if they continue to screen their applicants they are taking a tremendous risk of unintentional discrimination under a disparate impact theory. If they don’t run the check they risk that an employee or a member of the public will be harmed.

Commissioner Barker came to the EEOC with extensive experience in labor and employment law. She understands what employers face every day — she gets it!

Until the Guidance is knocked down by the courts, employers will be forced to consider the guidance when utilizing criminal background screens. Many employment attorneys we speak with recommend employers revise job descriptions to show items that would be required for the particular job. No longer should a job description state actual job functions, they should now include items such as be able to respect authority; be trustworthy; work well with others; and have the ability to handle personal identifying information or confidential information. Hire Image encourages all employers to review job descriptions with an employment attorney to be certain that job relatedness for particular crimes can be shown.

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