Wednesday, April 25, 2012

EEOC Focus on Criminal Background Checks and Ex-Offender Hiring

The EEOC’s recently announced Strategic Plan for Fiscal Years 2012 – 2016 identifies systemic discrimination as a main focus of the next few years. What does this mean for employers? Among other things, employers need to be cautious about policies that, although facially nondiscriminatory, end up adversely impacting legally protected groups.

Given the publicity surrounding the EEOC’s recent settlement with Pepsi, the enforcement and litigation priorities  referenced in its new strategic plan are certain to include the elimination of policies that unreasonably hamper the employment of ex-offenders. Such policies have an adverse impact upon minority and male applicants, and are becoming a growing social concern as the use of criminal background checks becomes more prolific.

While many employers are aware of the risks of denying employment based solely on an applicant’s arrest records, the EEOC’s enforcement efforts go further. They have extended to cases involving individuals who were denied employment due to prior convictions.  As we have indicated in a recent blog post, it is important that employers avoid creating or adopting blanket prohibitions against hiring ex-offenders.  A far safer approach for employers is to do a case-by-case analysis of applicants that considers factors such as:
• the nature of the crime for which the individual was convicted;
• the length of time that has passed since the crime was committed or the individual was incarcerated; and
• the relationship between the crime and the position for which the individual is seeking employment.
If a careful case-by-case analysis is done, it will be far easier for an employer’s hiring decisions to withstand future EEOC scrutiny.

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