The EEOC recently reiterated its lack of tolerance for blanket exclusions for applicants that present with criminal convictions through its Assistant Legal Counsel Carol R. Miaskoff's informal response to an inquiry from a currently incarcerated veteran who is anticipating difficulty in finding a position after his scheduled release in January 2014. (See October 24, 2013 Informal Response).
In her response, Ms. Miaskoff parroted the EEOC’s insistence that before an employer makes a decision to deny an applicant due to his/her conviction record, the employer must consider and evaluate:
(1) the nature and gravity of the offense or offenses for which the applicant was convicted;
(2) the time that has passed since the conviction and/or completion of the sentence; and
(3) the nature of the job held or sought.
The EEOC’s professed concern is that without individually assessing each applicant using the above factors, a blanket exclusion will have a disproportionate impact upon protected employees on the basis of, in particular, race and national origin. Accordingly, an employer must indeed consider the job at hand and how, if at all, an applicant’s criminal conviction truly relates to whether or not such an applicant can perform the job.
By way of example, an applicant for a bank teller position, who had been convicted of embezzlement just two (2) years prior, could justifiably be denied the job. However, if this same applicant were applying for a laborer position the analysis is not so clear in that such an applicant would not have direct access to funds as part of his/her everyday duties.
In sum, employers need to ensure that their hiring practices are up to date relative to conducting criminal background checks and using these results in making hiring decisions.