Obama’s EEOC: Employers Can’t Discriminate Against Felons
by SCOTT MCKAY
August 17, 2010
You did, in fact, read that correctly.
HotAir.com has a story today on an Equal Employment Opportunities Commission directive posted to its website which advises employers that the results of criminal background checks can’t be used to exclude applicants because of the effects such practices may have on “protected groups.”
There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.
Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.
Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when
· considering the nature of the job,
· the nature and seriousness of the offense,
· and the length of time since it occurred.
This is also true for a conviction.
HotAir’s Ed Morrissey notes that the idea a convicted felon can’t be excluded from a job on the basis of that conviction is absurd…
The hiring process involves a series of value judgments, with only a few objective measures. For employers who conduct background checks, conviction records supply one of the few objective measures in the process. If an employer has a choice between two equally qualified applicants and one has a conviction for fraud or theft, it would be absurd to tell the employer that the hiring decision cannot rest on that data. And yet, that’s exactly what the EEOC argues in this “advice” on compliance with its regulations — which in this case the EEOC acknowledges doesn’t exist on this topic. The EEOC is making a recommendation based on its own opinion rather than actual law.
Morrissey also asks the question whether – if true discrimination is so rare that EEOC has to attempt to forbid the use of criminal background checks as a disqualifier for potential employees - the EEOC still has a reason to soak up federal budget dollars. That’s a good question, in light of the fact that every state in the union has an equivalent anti-discrimination body. But the real issue here, which argues just as strongly for the elimination of the EEOC through de-funding when the GOP re-takes the House of Representatives in November, is the current administration’s out-of-control regulation of the private sector. Actions which would intimidate or encourage the hiring of criminals in the workplace create less-pleasant and less-productive environments for other employees, and distasteful regulations or “advice” such as this will make it even less attractive for employers to make new hires – or to make hires through interview processes open to all applicants outside of those employers might have access to through contacts or networking.
No one will be helped by this policy. No one. Not even the applicants with criminal backgrounds who need a booming economy and a wide-open job market to find gainful employment.