The EEOC Convenes to Discuss Hiring Practices for People with Arrest and Conviction Records

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The Equal Employment Opportunity Commission (EEOC) has planned a series of talks to examine the implications of various hiring practices on people with arrest and conviction records. The first meeting, held on July 26, 2011, also explored employers’ best practices and current legal standards.

A press release issued by the EEOC on July 27, 2011 cited among the key takeaways of the meeting the belief among some experts that, “employers often refuse to hire people with arrest and conviction records even years after they have completed their sentences, leading to recidivism and higher social services costs.”

At the same time, the EEOC heard from attorneys who cite the confusing and often contradictory pressures and conflicting laws affecting businesses when using arrest and conviction records in making employment decisions.  One employment attorney, Barry A. Hartstein, urged the Commission to consider these constraints on businesses when developing guidance or in deciding whether to pursue litigation in certain cases.

The EEOC first adopted rules governing hiring practices for arrest and conviction records in the 1980s, and they held a similar meeting to revisit the policy in 2008. The 2011 summer meeting brought in attorneys, employers, Department of Justice officials, and interagency government partners to discuss the ramifications of the current law and examine how hiring is actually implemented for people with arrest and conviction histories.

It’s a Complex Issue for Employers and Commissioners

On the one hand, employers are faced with a situation where they must make hiring decisions that limit their exposure to negligent hiring risks. Employers are held liable for the actions of their employees, so it makes sense that employers want to know all they can about an individual before they hire.  This includes the need to know of relevant arrest and convictions because the fact is, for certain positions it just isn’t prudent to hire someone with a criminal past. 

On the other hand, the use of arrest and conviction records naturally creates disparate impact (i.e., black males are disproportionately represented in the prison population) and can limit the opportunities for those who have already served their punishment. 

Our society today is faced with a significant challenge and equal responsibility to address the reentry of the prison population into society.  The Reentry Council, of which the EEOC is a member, is a Cabinet-level interagency group that was created to examine all aspects of reentry of individuals with criminal records with the goals of 1) making communities safe from recidivism and victimization; 2) assisting people returning from jail or prison to become productive citizens; and 3) reducing the direct and collateral costs of incarceration and saving tax dollars.

Gainful employment for those with criminal records plays a vital role in successful reentry. The challenge is, how do we make it safe and worthwhile for employers to take the risk?

The EEOC will hold open the July 26, 2011 Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meetings.  Public comments may be mailed to:

Commission Meeting, EEOC Executive Officer,
131 M Street, N.E.,
Washington, D.C. 20507,

or emailed to Commissionmeetingcomments@eeoc.gov.  All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meetings.  Comments will also be placed in the EEOC library for public review.

Contributor:   Michael Gaul

Michael Gaul is VP of Business Development for Proforma Screening Solutions. With more than 20 years of experience in fields of human capital risk management, physical security, and employment background screening, Michael crafts successful solutions to help employers make better hiring decisions. Proforma Screening Solutions is a Virginia-based talent acquisition management firm that offers integrated recruitment, employment background checks, and employee engagement solutions to employers nationwide. For details visit www.proformascreening.com.