EEOC Mulls Fairness of Criminal Background Screens

Attorneys, government officials and other experts met in Washington Tuesday (July 26) to testify before the U.S. Equal Employment Opportunity Commission on the pros and cons, and fairness and safety concerns, of using arrest and conviction records when making hiring decisions.

Employers often refuse to hire people with criminal records, the commission was told, even years after they’ve completed their sentences, leading to recidivism and higher social-services costs.

“This major barrier to employment touches a broad swath of the U.S. population,” said Amy Solomon, senior adviser to the assistant attorney general of the Office of Justice Programs at the U.S. Department of Justice. “According to the DOJ’s Bureau of Justice Statistics, more than 92 million individuals have a criminal history on file in state criminal-history repositories.

“This figure is for year end 2008,” she testified, “and may include individuals with records in more than one state. That said, with about 14 million new arrests recorded annually, it is clear that a significant share of the nation’s adult population — estimated at about one in three or four adults — has a criminal record on file.

“Many arrests are for relatively minor crimes,” Solomon testified. “And what is often forgotten is that many people who have been arrested –and therefore technically have a criminal record that shows up on a background check — have never been convicted of a crime. This is true not only for those charged with minor crimes, but also for individuals arrested for serious offenses. A snapshot of felony filings in the 75 largest counties, for example, shows that one-third of felony arrests never lead to conviction.”

Barry A. Hartstein, a shareholder in the law firm of San Francisco-based Littler, testified on the confusing and often contradictory pressures on businesses when using these records for hiring purposes, including conflicting laws. He urged the EEOC to consider these constraints on businesses when developing guidance or when deciding when to sue companies or not.

“My basic premise,” said Hartstein, “is that any discussion of an individual’s criminal history in the employment setting must be put in the proper context. It is multi-dimensional, ever changing, with no easy answers or any standard formula, such as ‘one size fits all.’ ”

The EEOC provided me with this link to all details of the meeting, including a press release and full written testimony from all participants. The commission will hold the meeting record open for 15 days and is inviting members of the public to submit written comments on any issues or matters discussed.