Vol. 76/No. 19      May 14, 2012

Systematic hiring discrimination on the basis of criminal records has become so egregious and has so disproportionately affected African-Americans that the Equal Employment Opportunity Commission—under pressure from growing lawsuits and formal complaints—recently revised its written guidelines, making them more explicit.

The EEOC’s April 25 ruling says companies cannot use criminal background checks as a basis for wholesale rejection of applicants, without defining why a particular record is incompatible with a specific job, nor can they use the checks as cover for racial discrimination.

The ruling is an extension of guidelines on the books since 1987, originally adopted when now Supreme Court Justice Clarence Thomas was EEOC chairman under President Ronald Reagan.

Because Blacks and other minorities are arrested and imprisoned at a vastly disproportionate rate than Caucasians, the agency holds, hiring policies that bar anyone arrested or convicted of a crime, or that are applied more often to deny jobs to Blacks or Hispanics, violate federal law. The EEOC ruling says bosses should not inquire into workers’ arrest record until they have processed their applications, and should consider each worker’s individual history.

In the past few years, companies such as Bank of America, Aramark, Domino’s Pizza, Lowe’s, Manpower, Omni Hotels and Radio Shack have adopted policies that systematically filter out all job applicants with a record. In some cases that includes anyone convicted of a felony in the last seven years. In other cases bosses have rejected outright anyone ever convicted of anything, including misdemeanors.

Earlier this year, Pepsi Bottling paid $3.1 million in fines to settle EEOC charges of race discrimination using such background checks to screen out job applicants.

The EEOC report notes the explosion in the prison population over the last 30 years. There are some 2.3 million incarcerated at last count—a jump of 274 percent in 25 years. Five million more are currently on probation, parole or under court supervision.

“Simply stated, incarceration in America is concentrated among African-American men,” the agency says. One in 12 Black men is in prison—one in three between the ages of 20 and 34 without a high school diploma or GED. The number of people with a record is inflated by the ubiquitous system of plea bargaining, in which more than 90 percent of those sent to prison are bludgeoned into copping a plea under threat of increasingly draconian sentences.

At the same time, more than 90 percent of bosses conduct criminal background checks, the EEOC reported, up from 51 percent in 1996. Companies today have access to an explosion of online databases, dozens of search companies offering low-cost record searches and hiring through temp and other staffing agencies. Data stuffed in the files of these outfits is notoriously unreliable, recording arrests that were later dropped, convictions that were expunged, misdemeanors as felonies, cases of mistaken identity, and more.

The ruling has generated some complaints from bosses concerned that it will make it easier for them to be sued for discrimination.

“Logistically, it’s going to be very difficult for employers who have a large amount of attrition to have an individual discussion with each and every applicant,” Pamela Devata, a Chicago lawyer who represents companies against EEOC complaints, told the Associated Press.  
 
 
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