EEOC’s New Focus on Criminal Background Check Prohibitions


In a down economy, with many hiring managers are getting dozens and sometimes hundreds of applications for a single position, there is a most often a well thought out screening and process to determine the most suitably and ‘Best Fit’ candidate. A common first step in that process is to reject applications of candidates who have indicated that they have a criminal history.

With nearly 1 in 4 adults in the U.S. having a criminal record, there is a call by civil rights organizations, politicians and some employers to change Equal Employment Opportunity Commission (EEOC) guidelines to "ban the box", or that section on a job application asking candidates to describe details of their criminal history during the application process.

The EEOC this past summer met to discuss a prohibition on employers from using of criminal records for employment screening purposes on a federal level. The commission has yet to release an opinion.

Some states already are voluntarily changing their guidelines. According to the New Haven Prison Reentry Initiative, Connecticut in June 2010 became the fourth state after Minnesota, New Mexico and Hawaii to enact ban-the-box laws for state jobs.

The laws allow employers to ask about criminal history once they personally meet with applicants and do not prohibit background checks. However, ban-the-box supporters say eliminating the question on applications gives job candidates an opportunity to get an interview and explain their past.

Boston, Chicago, Philadelphia, San Francisco and Seattle are among the cities that have enacted ordinances prohibiting employers from requiring job applicants to disclose their criminal backgrounds until after the first employment interview. After the initial interview, employers may perform a background check or request the disclosure of an applicant's criminal history. Some companies are voluntarily changing their policies as well. The YMCA of Greater Rochester, New York, with 15 locations, has been hiring those with criminal convictions throughout its association since the 1970s, despite the fact that Rochester does not have ban-the-box guidelines.

While Title VII of the Civil Rights Act of 1964 prohibits selection policies or practices that have a disparate impact on protected classes of people, like minorities and the gay and lesbian community, using a person's criminal record in the recruiting process is not, in and of itself, a violation of Title VII, according to the Seattle Office for Civil Rights.

Since a disproportionate number of people of color have criminal records, Bronstein says, the use of these kinds of background checks to screen candidates for employment is at heart a civil rights issue.

What ban-the-box advocates hope to do is to reduce unfair barriers to employment for people with criminal records in both the public and private sectors. It is incumbent on you and your company to follow this issue closely, either through a trade association, your local chamber of commerce, or other business groups. While the EEOC discussion focuses on government-sector jobs, experience would indicate that such changes will, in time, cascade to business.

Hedley Lawson, Contributing Editor
Managing Partner
Aligned Growth Partners, LLC