I recently had the honor to appear before the U.S. Commission on Civil Rights in Washington, D.C. at the briefing regarding the impact of criminal background checks and the Equal Employment Opportunity Commission’s (“EEOC’s”) conviction records policy on the employment of Black and Hispanic workers.
The Civil Rights Commission (a separate body from the EEOC) is in the process of reviewing the new EEOC Guidance policy and other prohibitions or limitations on the use of criminal background checks regarding the re-entry of ex-offenders into the job market.
The EEOC has taken the position that certain current employment practices by employers regarding the use of criminal histories have a discriminatory impact upon Blacks and Hispanics who are seeking employment after having a criminal conviction. This a new area of possible legal exposure for companies who routinely conduct criminal background checks on job applicants.
The U.S. Civil Rights Commission has sought a wide-range of opinions on this matter as the use of criminal background checks is a common practice by employers and the U.S. Civil Civil Rights Commission is in the process of developing its own position on this important employment issue.
I was honored to participate and share my views on this matter, particularly from the viewpoint of the smaller employer who many not be versed on this subject of public concern.
We will continue to discuss this issue in further Blog postings. Here is my December 7, 2012 statement before the U.S. Commission on Civil Rights:
Statement of Rick Larson before the U.S. Commission on Civil Rights
Good morning, everyone. My best holiday wishes to you, your families, your loved ones. The city looks beautiful this time of year.
Thank you for the opportunity to participate in this very important conversation regarding the use of criminal histories during the employment process.
As reflected in my executive summary, I have managed the hiring of thousands of men and women from using large scale job fairs to senior level executive searches. In each instance, the goal has been to identify the most suitable candidates for the organization.
Some of the best people I have hired did not make a strong first impression nor attend ranked US News and World Report top 50 universities.
Beyond the immediate assessment as to whether a candidate can perform the tasks identified in a job description there are other crucial variables such as: interpersonal skills, critical thinking skills, leadership potential, brand awareness, work ethic, problem solving capabilities, positive attitude, teamwork and demonstrated judgment to make good solid decisions.
Reasonable people often disagree as to who is the best qualified candidate for a job. I have seen hiring managers strongly at odds with the HR manager as to which candidate is the right fit for the job.
Importance of Criminal Background Checks
I believe obtaining an accurate criminal history is an important component in any disciplined hiring process. Indeed, a thorough background check with detailed criminal history is the single most effective tool that employers can use to mitigate their risks, which leads us to the April 25 EEOC Enforcement Guidance. I will make two key points.
Need for Small Business Education on New EEOC Rules
First, my observation is that the rationale behind the Guidance does not yet resonate with smaller businesses whose HR managers do not have ready access to the educational training and awareness offerings of major industry groups and to outside legal counsel. I draw this observation as I present classes on employment to HR managers. I would venture to say that if we were to conduct focus groups with HR managers from smaller companies nationwide we would often find a lack of understanding as to the issues raised in the Guidance.
HR managers view themselves in a gatekeeping role to prevent negligent hiring claims and the thought that their company could be sued by an ex-offender for not being hired is counter intuitive.
When I announced to my Rotary Club this week that I would be participating in today’s discussion, I was immediately approached by many business owners who knew nothing of this issue and were concerned.
Accordingly, I believe governmental agencies as well as private sector industry groups have an obligation to provide educational awareness on the guidance so that all employers have an equal opportunity to understand the EEOC’s current focus on this issue.
Case-by-Case Review of Prior Convictions
My second observation is that companies that do understand the rules in the Griggs and Green cases have often moved forward to create an interactive process to thoroughly vet concerns raised by the disclosure of the criminal history to determine whether the conviction relates to the open position under consideration.
I have worked with companies that have been engaged in this process long before the April Guidance document was issued. The interactive process allows the ex-offender to provide court records often required by the company. Some companies also want to see the affidavit supporting the arrest to get a better understanding as to what actually took place. The ex-offender is given the opportunity to make a statement and address concerns.
A helpful tool in this process can be a comprehensive set of questions that need to be addressed. Another tool may be a matrix of data points weighting the various factors for review. Such tools provide scrutiny as to the nature of the offense, when it took place, age of the offender at the time, intervening work history, recommendations of previous employers and other key factors.
When all the relevant factors have been gathered, the stakeholders such as the hiring manager, the HR manager and the risk manager make a business decision as to whether or not the behaviors underlying the criminal conviction correlate to the open job. A person convicted of possession of stolen property may not be deemed suitable for a warehouse position but may be deemed suitable for a landscape gardening position. And sometimes the decision not to offer any position is necessary to serve the best interest of the company and to prevent downside risks.
Whatever the outcome of this step-by-step individualized interactive process, documentation of the thorough measures the company took to vet and debate the issues will provide the basis for a defense against both a negligent hiring charge and a failure to hire charge.
Conclusion: Allow the Company to Make the Final Hiring Decision
Even when criminal history is not a factor, there will be many close calls as to who gets hired. And when criminal histories are a factor, there will be many close calls as to who gets hired. But who better to make these decisions than the employer who knows its own business operations far better than anyone else?