The U.S. House of Representatives recently passed an appropriations bill (H.R. 5326) that provides funding for several agencies including the allocation of $367 million the U.S. Equal Employment Opportunity Commission (EEOC) but also includes amendments that would block implementation and enforcement of several programs including the new EEOC guidance on the ‘Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ for employers using criminal background checks. The full text of H.R. 5326 is available at: http://www.govtrack.us/congress/bills/112/hr5326/text. On April 25, 2012, the EEOC, the agency that enforces federal laws prohibiting employment discrimination, approved updated guidance for the use of criminal background checks since an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964 because arrest and conviction records disproportionately affect African-Americans and Hispanics. While H.R. 5326 allocates $367 million to the EEOC under ‘Equal Employment Opportunity – Salaries and Expenses,’ under ‘General Provisions – Spending Reduction Account,’ the bill reads: Sec. 544. None of the funds made available by this Act may be used to implement, administer, or enforce the Equal Employment Opportunity Commission (EEOC) Enforcement Guidance Number 915.002 concerning ‘Consideration of arrest and conviction records in employment decisions’. However, the Senate appropriations bill (S. 2323) approved by the Senate Appropriations Committee and now pending before the Senate to fund these same agencies does not include these amendments. Once S. 2323 has been approved the Senate bill will be moved to a conference committee where the differences between it and the House bill H.R. 5326 will be reconciled. The full text of S. 2323 is available at http://www.govtrack.us/congress/bills/112/s2323/text. The updated EEOC guidance on criminal records, which builds on longstanding court decisions and existing guidance documents the EEOC issued over twenty years ago, is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Attorney Lester Rosen, founder and CEO of background check firm Employment Screening Resources (ESR) and author of ‘The Safe Hiring Manual,’ recently submitted a letter of public comment to the EEOC regarding the updated guidance. Before entering the background screening industry, Rosen spent nearly 20 years practicing criminal law, the majority of time as a defense lawyer, where he represented a large number of people accused of criminal acts ranging from driving under the influence and petty theft all the way to sexual assaults, child molestation, and homicide. He had the opportunity to work with numerous offenders and their families very closely and often assisted offenders in gaining employment. In his letter, Rosen fully embraces the EEOC objective of ensuring that ex-offenders are not the subject of unfair treatment: “America is a country of second chances, and if a person has committed a crime and done the time, he or she needs need a job in order to become a law abiding and a tax-paying citizen. As a society, we cannot afford to build more prisons then schools or hospitals. In fact, I have written a widely distributed article titled ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ which is available at https://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php.” However, Rosen writes that he has also seen “the devastating results first hand when the wrong person is put in the wrong job. I have been involved in cases, both as an attorney and an expert witness, where children have been molested, woman subjected to serious sexual assaults in their own homes, and people murdered in their own homes, all because appropriate due diligence was not exercised. I am a firm believer that there should be a job for everyone, but not everyone is entitled to every job.” In his letter, Rosen finds the recently updated EEOC guidance is “very troubling” offers reasons why the EEOC should withdraw or modify the updated guidance.
- The statistics cited in the EEOC guidance to show the number of Americans involved in the criminal justice system are overstated and inflated.
- The EEOC guidance gives ex-offenders the status of a “protected group” similar to groups based on race, religion, or national origin.
- The recidivism studies cited in the EEOC guidance are still in the early stage and should not be the basis of social policy.
- The new EEOC guidance will create brand new industries of “professional litigants” and advisors on complex new rules.
- The EEOC guidance limiting criminal inquiries only to “relevant criminal matters” to a job is nearly impossible for employers to carry out.
- The EEOC guidance of employers limiting inquiries can have the unintended consequence of working against ex-offenders trying to get jobs.
- The EEOC guidance of limiting inquiries on criminal records means employers cannot make informed decisions if they do not view actual court case files.