WASHINGTON — Is an arrest in a barroom brawl 20 years ago a job disqualifier? Not necessarily, the government said Wednesday in new guidelines on how employers can avoid running afoul of laws prohibiting job discrimination.
The Equal Employment Opportunity Commission's updated policy on criminal background checks is part of an effort to rein in practices that can limit job opportunities for minorities that have higher arrest and conviction rates than whites.
“The ability of African-Americans and Hispanics to gain employment after prison is one of the paramount civil justice issues of our time,” said Stuart Ishimaru, one of three Democrats on the five-member commission.
But some employers say the new policy — approved in a 4-1 vote — could make it more cumbersome and expensive to conduct background checks. Companies see the checks as a way to keep workers and customers safe, weed out unsavory workers and prevent negligent hiring claims.
The new standard urges employers to give applicants a chance to explain a report of past criminal misconduct before they are rejected outright.
The EEOC also recommends that employers stop asking about past convictions on job applications. And an arrest without a conviction is not generally an acceptable reason to deny employment.
“You thought prison was hard, try finding a decent job when you get out,” EEOC member Chai Feldblum said. She cited Justice Department statistics showing that 1 in 3 black men and 1 in 6 Hispanic men will be incarcerated during their lifetime. That compares with 1 in 17 white men who will serve time.
Current standards require employers to consider the age and seriousness of an applicant's conviction and its relationship to specific job openings. And it is generally illegal for employers to have a blanket ban based on criminal history.
Constance Barker, one of two Republicans on the commission, was the only member to vote against the new policy. She blamed colleagues for not letting businesses see a draft of the guidelines before voting to approve them.
“I object to the utter and blatant lack of transparency in the process,” Barker said.
But other members said the commission held a hearing last year and took more than 300 comments.