The EEOC’s Revised Criminal Records Policy Applies To You

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May 2, 2012

If you routinely refuse to send out or even consider candidates with a criminal record, it’s time to think your policy. What to you may be just a common sense precaution and a service to your client, is very likely going to look like discrimination to the EEOC.

After years of discussion and hearings, the Equal Employment Opportunity Commission last week revised its policy on the use of arrest and criminal records in hiring. Boiling down the 52 pages of guidance, the policy is essentially this:

An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination…”

Take no comfort in the words “in some instances.”  “We usually have a very broad view,” says Peggy Mastroianni, associate legal counsel for the EEOC.

For instance, the routine exclusion of all persons with a criminal conviction — however color blind, age, and sex neutral you make it — will land you in trouble if a candidate you refuse to sendout complains. The guidance makes that eminently clear when it says:

National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.

If, by some chance, you’re thinking the policy doesn’t apply to you since you’re not an employer, forget it. The guidance covers “virtually anyone who recruits and refers applicants for employment,” says Jeff Allen, a Fordyce columnist and leading expert on U.S. placement law.

He says that since  Title VII of the Civil Rights Act of 1964 was adopted, it, as well as court decisions, subsequent statutes, and EEOC rulings, have nearly always included “private employment agencies (the Title VII definition) within the ambit of regulation.

“These (and the hundreds of state laws) regulate contingency-fee recruiters with the same force and effect as employers,” Allen notes. To make it crystal clear, he adds:

I’ve read a few of the many analyses of the new EEOC policy.  There is no doubt that the policy applies fully to retained and contingency-fee executive recruiters, employment agencies, temporary services (both as direct employers and as third-party placement services), nurses registries, domestic agencies, and virtually anyone who recruits and refers applicants for employment.

Not many independents have formal job applications. Agencies tend to, and some of the retained search firms require candidates to fill out an application. What should you do if your job app asks candidates about criminal convictions or arrests?

Get rid of the question; don’t even ask, counsels Barry Hartstein, co-chair, Hiring and Background Checks Practice Group at Littler Mendelson. “That’s certainly a proactive approach,” he says. Especially speaking of independents, he says, “I think it’s a tough issue when you are screening out candidates because of their criminal record. I’d say don’t do it.”

While lone recruiters can sometimes operate under the EEOC radar,  Hartstein says the EEOC has pursued “a number of search firms over the years… All it takes is one person to complain.”

With the EEOC becoming more aggressive in recent years, Angela Bosworth, vice president of compliance and general counsel for EmployeeScreenIQ, says avoiding problems should be a priority. “Just the investigation can be cumbersome and expensive,” she says.

One thing she recommends agencies and independents do is to include language in client contracts to protect them in situations where an employer blames the recruiter for discriminating. In the contract, Bosworth says, “state that the company can’t hide behind you” in case a rejected candidate files a complaint with the EEOC.

And, she adds, “avoid asking about criminal convictions or arrests.” “It is guidance,” she says of the EEOC policy document adopted last week. “It’s not supposed to have the full weight (of a court decision),” she notes, observing though that “courts have relied heavily on EEOC guidance in the past.”

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