Yesterday, the EEOC continued its series of public
meetings examining hiring practices as alleged employment barriers, covering employers'
use of arrest and conviction records. According to the EEOC's
press release, it is trying to strike a balance between workplace fairness
and workplace safety. Let's hope that the EEOC is serious about being balanced
in its approach to this important issue.
The EEOC's position has always been that blanket policies
that disqualify people with criminal backgrounds violates Title VII. Instead
employers should undertake a job-by-job, employee-by-employee, check-by-check
analysis of the relationship between the conviction and the ability to perform
the job. At the minimum, the EEOC should continue this approach.
Nothing will be served by tightening the reigns on
employers' ability to conduct reasonable criminal background searches.
Consider, for example, the May 2009 verdict against a Virginia assisted living facility
that failed to discover that it had hired a sex offender. This example might be
extreme, but it illustrates that criminal histories are necessary and relevant
for many employers. Every employer does not need to check the criminal
background of every applicant. However, it is imperative that the EEOC allow
employers the flexibility to decide for themselves which positions warrant
criminal history histories, and then which crimes disqualify a candidate from
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