How the EEOC Guidelines makes “Ban the Box” a National Issue

To add to our previous posts on the “Ban the Box” trend happening across states and municipalities we wanted to share this interesting article from the Wall Street Journal (WSJ), “Perform Criminal Background Checks at Your Peril.” The WorkPlace Group has been following “Ban the Box” trends because these laws will continue to affect the hiring process of employers. In addition to States like New Jersey, Illinois, California, Minnesota and Colorado, the Equal Employment Opportunity Commission (EEOC) is also implementing “Ban the Box” policies at the national level. Should the EEOC continue in this direction, “Ban the Box” laws could come to affect all U.S. employers.

What is the EEOC Saying About Background Checks?

The EEOC has started to use Title VII of the 1964 Civil Rights Act to sue businesses for a wide range of hiring practices that negatively impacted minorities. An example happened in 1989 when the EEOC sued Carolina Freight Carrier Corp. for refusing to hire an Hispanic man as a truck driver. This man had a history of multiple arrests and served 18 months in jail for larceny. The U.S. District Judge Jose Alejandro Gonzalez, Jr. ruled against the agency saying that the “EEOC’s position that minorities should be held to lower standards is an insult to millions of honest Hispanics.” As Judge Gonzalez stated, “a rule refusing honest employment to convicted applications is going to have a disparate impact upon thieves.”

In April 2014, the EEOC unveiled the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.” These guidelines state that criminal record exclusions have a disparate impact based on race and national origin. If you have been following The WorkPlace Group’s blog posts, then this should sound familiar. This is the long version of “ban the box.”

Where is the Connection Between Minorities and Ban the Box

The WSJ cites statistics indicating that the crime rate of certain races is exponentially higher than that of other races. These statistics form the basis for EEOC’s concern and recommendation to employers to change their application process. A former EEOC General Counsel stated in testimony to the U.S. Commission on Civil Rights that employers could be considered guilty “of race discrimination if they choose law abiding applicants over applicants with criminal convictions.” (According to the same WSJ article) A considerable challenge for employers will be complying with EEOC guidelines even if they are not in a state with a “ban the box” law.

How Will the EEOC’s New Guidelines Really Affect Minorities?

The WSJ describes several studies that show fewer minorities are hired when employers conduct background checks in comparison to employers who don’t. The WSJ is suggesting that EEOC’s guidelines and stance on this topic may actually hurt the employment of those minorities it is purposely trying to protect.

“Ban the Box” Advice for Employers

Even if your state does not have a “ban the box” law currently, given the EEOC’s position on this issue, we recommend all employers delay inquiring or collecting any information on applicants’ criminal histories or conducting a background check until after an offer of employment has been extended.

We invite examples of how employers are changing their employment applications and selection process to comply with EEOC’s and State trends on “Ban the Box” legislature. We also welcome your questions as to how to best comply with this national trend.

For more information on how to ready your employment process for “Ban the Box” trends, please feel free to contact a WorkPlace Group Associate for assistance.

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