Reining in background checks

Given that Americans tend to go for extremes, you knew tons of people would have to have their job prospects quashed by employment background checks before something would change.

Now it appears we might be getting close to that point. Why? Ten percent unemployment means more people looking for work and finding that even arrests or convictions far in the past can come back to haunt them.  Some recent articles (here , here and here), plus conversations I've had with legal and regulatory folks suggest that sympathy may be tilting towards the re-entering job seekers.. 

The EEOC, for example,  is "much more interested in focusing on the effect of criminal records on employment," says EEOC assistant counsel Carol Miaskoff. "To the extent that issues are front burner here (at the agency)," she continues, " this one is." So far this year, the agency has brought two major cases:

• On March 26, the EEOC settled a case against Franke Foodservice in which the company had not hired a black applicant who disclosed a felony conviction on his record even though it hired a white applicant who made a similar disclosure a year earlier. 
• More recently, on October 1, the EEOC filed a case against Freeman Companies, a Baltimore-based events and convention planner, charging that the company had engaged in "a pattern or practice of unlawful discrimination by refusing to hire a class of black, Hispanic or male applicants across the United States.

Civil rights law doesn't specifically protect people with criminal records, of course. But the  EEOC has found that policies that exclude individuals based on arrests and convictions that have nothing to do with the job may have a disparate impact on certain populations and therefore constitute discrimination.  So in the Freeman Companies case, for example,  barring people with criminal records from employment was determined to be illegal as it would have more impact on blacks and Hispanics.

Miaskoff was barred from talking about ongoing investigations, but emphasized the if there is proof of systemic discrimination the agency isn't afraid to pursue it. While ex-offenders shouldn't get their hopes up, because these things take awhile, this is not "fantasy."

The EEOC is currently working on new guidelines for employers, as a follow-up to a meeting late last year.
Gabrielle Delagueronniere with the  Legal Action Center in Washington, DC. also recommends individuals encountering discrimination check with the specific laws in the city of state where they live.  Some states such as New York and Wisconsin specifically ban discrimination  based solely on a criminal record, except in cases where the charge is substantially related to the job. For more information check out LAC website, or regulations in your state here.