The Equal Employment Opportunity Commission on Wednesday approved an updated policy that makes it harder for employers to use background checks to systematically rule out hiring anyone with a criminal conviction.
The commission said that while employers may legally consider criminal records in hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a disparate impact on racial and ethnic minorities.
The E.E.O.C. adopted its new policy in a 4-to-1 vote at a time when more than 90 percent of employers conduct criminal background checks of applicants, up from 51 percent in 1996.
In publishing its extended guidance to employers, the agency made clear that employers were prohibited from treating applicants with the same criminal records differently because of their race, color, religion, sex or national origin.
The commission said that if employers excluded all applicants with criminal records, they would generally violate employment discrimination law unless they could show that such exclusions were “job related and consistent with business necessity.”
The agency instead called for employers to conduct individualized assessments of job applicants in a way that examined the nature and gravity of the criminal offense, the time passed since the offense and the nature of the job applied for.
In saying that a blanket exclusion can be discriminatory, the commissioners noted that if current incarceration rates remained unchanged, about one in 17 white men are expected to serve time in prison during their lifetime, compared with one in six Hispanic men and one in three African-American men.
“National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” the agency said.
As an example, the commission discussed a situation in which a white applicant and a black applicant were recent graduates of the same university, had similar skills and work experience and had both pleaded guilty to charges of distributing marijuana as high school students. After college, they both applied to the same company, but after a background check, the company referred the white for a follow-up interview but not the black, saying it could not consider “these drug dealer types.”
That disparate treatment would violate federal antidiscrimination laws, the guidance document said.
The commission said it would look to things like biased statements and inconsistencies in the hiring process as evidence of unlawful bias.
The new policy updates a policy issued in 1987, when Clarence Thomas, the Supreme Court justice, was commission chairman. Then, as now, the commission stated that blanket exclusions could unfairly hurt black and Latino applicants because they have considerably higher conviction records and the criminal offenses might be long ago and have little bearing on a current job.
In its guidance, the commission stressed that the fact that a job applicant was arrested does not establish that criminal conduct had occurred.
Maurice Emsellem, co-director of policy for the National Employment Law Project, an advocacy group for low-wage workers, applauded the commission’s move.
“It makes a big difference because a lot of employers have very little understanding of the basic guidelines on criminal background checks, and some have ignored them altogether,” he said. “The E.E.O.C. has made a big effort to make it easier for employers to understand the standard and for workers to understand their rights.”
Michael J. Eastman, executive director of labor law policy for the United States Chamber of Commerce, said the new directive would make it harder for employers to use criminal histories in employment decisions. “We’re trying to assess how much harder,” he said.
He noted, however, that the policy approved Wednesday was “much improved” over earlier drafts.
