NEW EEOC INTERPRETATION MAY AFFECT JOB APPLICATIONS
Although it’s still too soon to say so definitively, the latest information from the Equal Employment Opportunity Commission may make it unlawful for employers to ask job applicants if they’ve ever been convicted of anything.
The basis for this change seems to be a decision by the EEOC that a question about convictions has a “disparate impact” on the hiring of minorities.
So, the final result could be that employers may have to remove from their job applications any questions about previous convictions. The net impact will be to increase the importance of doing criminal background checks on every candidate for employment. In effect, the EEOC seems to be taking the position that a convicted felon cannot be denied employment solely on the basis of that conviction – under certain circumstances. What those circumstances are likely to be will probably vary widely and require employers to make hiring decisions on a case-by-case basis, instead of simply having a company-wide policy against hiring convicted felons.
For example, if the felony conviction was 20 years ago and the candidate has been a law-abiding citizen since, it seems likely that the EEOC will take the position that the prior conviction cannot be used as a barrier to being hired today. The nature of the felony conviction will also impact hiring decisions. If, for example, the candidate was convicted of theft two years ago and the employer is in a business where the potential for theft is high, the employer could disqualify the candidate on the basis of the relatively recent theft conviction. On the other hand, if the employer is in a business where theft is highly unlikely to occur, a previous theft conviction might not be a basis for denying employment to the candidate. It will probably depend, ultimately, on the nature of the relationship between the job and the felony conviction
It’s entirely possible that unless the employer does a thorough court check, no one will know about a felony conviction if the EEOC makes it discriminatory to ask about it on job applications! That means, conceivably, that a child molester could be hired by a day care center if the owners fail to do a thorough court check!
But many unknowns remain for employers. For example, at what point in time can a previous felony conviction no longer be considered as a present bar to employment? If a candidate has multiple convictions for, let’s say, workplace violence, shouldn’t that be a sufficient reason to deny employment to that person regardless of the type of position to be filled? We’ll have to wait and see.
The only sensible solution – at least at this point – seems to be to establish a policy to do a court check on every candidate for employment prior to any job offer being made. If the EEOC restricts the employer’s ability to ask about previous felony conviction, it will be up to the employer to use reasonable care in the hiring process to insure that the workplace is safe! Ultimately, failing to do so could expose the employer to potential accusations of negligent hiring.