They sent a letter to the agency saying they were defending all U.S. businesses’ access to criminal screening as well as upholding some of their state laws that prohibit hiring former criminals in certain positions like daycare workers. But the EEOC argues refusal to hire people who have criminal records results in illegal -- if unintentional -- racial discrimination because more blacks than whites are behind bars.
The issue sets up a complex tug-of-war between competing policy interests.
On one hand is the desire to reduce burdens on businesses to begin hiring the types of workers they have confidence in. On the other is the goal of getting those who have paid their debt to society into productive employment so they’ll pay taxes, support their families and won’t be tempted to commit new crimes.
“It is sometimes difficult for employers to navigate all the details,” said Sarah H. Lamar, a labor lawyer with HunterMaclean in Savannah, Ga.
R. Daniel Beal, a labor lawyer with McKenna Long & Aldridge, one of the nation’s largest law firms, says the conflict puts employers in the middle.
“An employer can be caught between complying with a state law that has a blanket rule (against hiring one with a conviction for certain jobs) and the EEOC guidance,” he said.
Advocates for former prisoners argue that because most convictions are drug related and not for violent crimes or theft, then a conviction shouldn’t automatically disqualify a job applicant who might otherwise be well suited.
“With our clients, we always remember that a human being’s life is worth more than the worse decision they ever made. Once a person has gone to prison and done their time, we have to give them opportunities to turn over a new leaf,” said Sara Totonchi, executive director of the Southern Center for Human Rights.
Employment is difficult enough for anyone in this economy, but doubly so for a former inmate. Most end up in low-skill/low-wage jobs with no real responsibility.
Even state government can frustrate them. For example, Georgia prisons teach barbering skills to prepare inmates for jobs on the outside, but the state’s licensing board used to automatically reject any application that included a past conviction. That’s since changed, but other examples exist, advocates say.
Every year in the United States, 600,000 people leave prison. Blacks make up more than 40 percent even though they amount to only about 10 percent of the U.S. population.
That’s why the National Association for the Advancement of Colored People has made it a priority to eliminate obstacles to their hiring. It worked with the EEOC on developing the agency’s newfound emphasis on criminal-background screening.
“The issue is making sure that employers know they should not discriminate against who have paid their debt to society,” said Hilary Shelton, the national organization’s senior vice president for policy.
In April, 2012, the agency issued a “guidance” which doesn’t have the force of a law but is meant to inform employers about the leanings of the administration. It said employers shouldn’t automatically reject applicants with a conviction but rather look at the individual circumstances of the crime, how long ago it happened and whether it applies to the job in question.
Several attorneys general raised objections.
Then last month, EEOC attorneys filed federal lawsuits against BMW Manufacturing in Spartanburg, S.C., and Dollar General stores in Chicago.
BMW changed subcontractors in its parts warehouse, and before the workers could move from the old subcontractor to the new one, BMW insisted on terminating any with a past conviction. Of the 88 workers fired, 80 percent were black, according to the suit, including some who had work in the warehouse for a dozen years.
Dollar General has a longstanding rule not to hire former convicts in its stores. Between 2004-07, it rejected 7 percent of non-black applicants and 10 percent of black applicants once convictions turned up in background checks despite initially offering them jobs conditional on the screening.
“The gross disparity in the rates at which black and non-black conditionally employees were discharged on account of defendant’s criminal background-check policy is statistically significant,” the EEOC lawyers wrote in the suit.
Both companies refused to budge when EEOC tried to negotiate.
Last week Dollar General issued a statement endorsing the stance of the attorneys general.
“We believe the letter is well-reasoned and grounded in both the law and common sense,” the statement read.
In their letter, the state officials argued that the EEOC is going beyond its mission to police discrimination on the basis of age, sex, race, religion and nationality.
“But no matter how unfair a bright-line, criminal-background check might seem to some, it is not your agency’s role to expand the protections of (the Civil Rights Act) under the pretext of preventing racial discrimination,” the attorneys general wrote. “If Congress wishes to protect former criminals from employment discrimination, it can amend the law.”
Georgia Attorney General Sam Olens said the nine letter signers are watching to see the legal reasoning in the lawsuits before deciding whether to join them as parties.
Background checks have saved lives, according to Olens. And so, failing to do them could open businesses to lawsuits from the victims of any new crimes by an employee with a criminal record, he said.
“In this world that we live in with sexual predators and whatever, clearly you have to check the criminal background of your son or daughters’ Little League coach,” he said. “And in this litigious world we live in, you have to expect that a parent would sue an employer for negligence if something happened.”