EEOC Promotes Hiring Recently Released Prisoners

On June 21, Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien participated with Secretary of Labor Hilda Solis and Attorney General Eric Holder in a roundtable discussion of employment strategies for getting individuals with criminal records, including recently released prisoners, back to work. Employers, service providers, academics, policy advocates, and former prisoners also participated. The meeting was sponsored by the Obama administration’s Reentry Council, an interagency group of cabinet-level officials whose goal is to coordinate federal agency resources to assist former prisoners in becoming productive citizens, thereby saving taxpayer dollars by reducing recidivism.

One of the first products of this collaboration is the EEOC’s “Reentry MythBusters,” fact sheets designed to dispel common misconceptions that those with criminal records are automatically barred from employment. One “MythBuster” addresses the Title VII of the Civil Rights Act of 1964 implications of using arrest and conviction records as a basis for employment decisions. While the EEOC acknowledges that an employer isn’t prohibited from requiring applicants to provide information about all prior convictions or incarcerations, they may not treat people with the same criminal records differently because of their race or national origin.

Nor may an employer automatically bar everyone with a prior criminal record from employment. The EEOC takes the position that the use of criminal conviction records has an adverse impact on racial and ethnic minorities and therefore is unlawful absent a business necessity. A nationwide EEOC Title VII race, national origin, and gender discrimination class action, filed on behalf of black, Hispanic, and male job applicants against a corporate events planning company challenging the use of credit histories and criminal background checks as hiring criteria, remains pending in federal district court in Baltimore, Maryland. EEOC v. Freeman, No. 8:09-cv-02573 (D. Md.), filed September 2009.

Basically, employers may consider prior convictions if they are job- related according to the following three factors:

1. how the job relates to the type of crime committed (e.g., a convicted embezzler seeking an accountant’s position);
2. the nature and seriousness of the offense; and
3. the length of time since it occurred (e.g., last year versus 20 years ago).

These rules apply to all employers with 15 or more employees, including the private sector, the federal government, and federal government contractors. Guidance is also provided on the use of arrest and conviction records under the Fair Credit Reporting Act.

The EEOC also announced it will hold a public meeting later this month to examine employment barriers faced by individuals with arrest and conviction records. The hearing will examine three areas:

1. best practices for employers;
2. an overview of local, state, and federal programs and policies; and
3. legal standards governing employers’ consideration of criminal arrest and conviction records.

The hearing record will be used to develop future guidance on employment barriers faced by individuals with arrest and conviction records.