The federal Equal Employment Opportunity Commission (EEOC) released an Enforcement Guidance last April that will have far-reaching consequences for prospective employees with a criminal record in California–as well as for the employers that turn them down. This law strengthens the existing California law against using the prior criminal history of prospective employees unless there is a job-related reason to do so.
According to the EEOC, using criminal records to make employment decisions can have a disparate impact on certain individuals, especially African American and Latino males. A disparate impact occurs when an otherwise neutral regulation or process affects a protected class more heavily than others. Protected classes include race, religion, national origin and disability. Higher arrest and conviction rates for African American and Latino males make using a job applicant’s criminal record suspect, according to the EEOC, because it has a disparate impact on these groups.
The EEOC has long discouraged employers from considering arrests that have not lead to convictions when making employment decisions. The new Guidance prohibits the use of a broad exclusion for any conviction. A broad exclusion is, for example, a section on a job application where an individual must check a box if he or she has ever been convicted of any crime, and excluding all applicants who checked the box.
Under the new EEOC Guidance, an employer can justify consideration of criminal history in two ways:
(1) the employer can validate particular exclusion criteria by demonstrating that past criminal conduct is statistically likely to result in certain illegal behaviors or actions, or
(2) the employer must develop a “targeted screen” or “individualized assessment” that considers at least the nature of the conviction, the time elapsed since the conviction, and the nature of the job along with the conviction itself.
This targeted screen should essentially allow a job applicant the opportunity to show that the exclusion due to past crimes should not apply in the particular case. The EEOC listed a set of factors that an employer should consider. These include the facts surrounding the offense, rehabilitation efforts, the number of offenses for which the individual was convicted, the amount of time since the conviction, other similar jobs held after the conviction with no repeat offenses, employment history before and after the conviction, character references, and whether the employee is bonded.
However, even if the employer has put a targeted screen procedure in place for hiring employees, a prospective employee may still prevail in an employment discrimination suit if he or she can prove that there was a less discriminatory alternative that would serve the employer’s legitimate goals, but that the employer refused to implement it instead.
The Guidance recognizes that federal and state laws may restrict certain positions to candidates who have not been convicted of specified crimes. This is true of airport security screeners, law enforcement officers, educators, childcare workers, bank employees, and port workers. Similarly, the EEOC recognizes that a person with a criminal record may be denied security clearance required for a number of government positions. However, any exclusionary practices beyond federal restrictions will be viewed as suspect by the EEOC.
Detractors argue that this EEOC Guidance effectively gives convicted criminals more rights than law-abiding citizens. Others argue that this Guidance will be difficult and costly to implement. What is certain is that it is sure to result in more employment discrimination related litigation in California and across the country.
Criminal Defense & Expungement Help in Orange County
For a person with a criminal record, finding employment may be difficult and sometimes close to impossible. The challenges faced by those with a criminal record can be daunting, and so it is important to fight all charges vigorously. However, even if you have a record, help is available. At the Johnson Criminal Law Group our experienced attorney can discuss all of your legal options, including expunging your criminal record.