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EEOC Updates Guidelines Related To Background Checks

New employees with a criminal record may be breathing a sigh of relief after the Equal Employment Opportunity Commission (EEOC) issued new guidelines to employers when running background checks on new hires.

The current guidelines, as applied, have a disparate impact on minorities, particularly African American and Hispanic job seekers, because they are more likely to have a criminal record. This practice, in effect, discriminates based on race in hiring decisions, according to the EEOC.

Under the new guidelines, employers can no longer exclude an applicant simply because he or she has a criminal record. An employer must consider for what offense the applicant was convicted, the time elapsed since the conviction and whether the offense that resulted in conviction would have an impact on the potential employee’s desired job.

Individuals must also be given an opportunity to explain a criminal record. An employer should consider, among other evidence, when determining whether a criminal conviction makes a person ineligible for hire:

  • The facts of the actual offense(s)
  • The number of convictions
  • The age of the prospective employee when convicted of the offense and when released from jail/prison
  • The existence of other, similar incidents
  • Whether the individual has been rehabilitated
  • Any employment or character references

Changing hiring practices related to background checks and the use of criminal histories should mean more opportunities for minority males because they tended to be excluded from the hiring process more frequently than any other group because of a criminal past.

Source: 89.3 KPCC, “New protections for job seekers with criminal records,” April 30, 2012

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