Seyfarth Shaw Labor and Employment partner Pamela Devata is quoted the June 20 edition of the New York Times regarding the Equal Employment Opportunity Commission's (EEOC) crack down on employers who use the criminal histories of job applicants to discriminate against them illegally.
According to the article, the 1964 Civil Rights Act gave way to government policies of the 1970s that stated using criminal records in employment decisions could constitute as discrimination. The aforementioned policies echoed the Civil Rights Act as it protects people from racial, ethnic and other kinds of discrimination in a variety of settings, including at work. The article further explains that commission warns employers not to use arrest records at all in hiring decisions. Furthermore, the article shows “arrests are not proof of criminal conduct” — they often do not result in charges, and charges often do not lead to convictions, therefore, basing a hiring decision on an arrest record is presumptively discriminatory.
Pam says that there are ways to protect from violating the law and hiring an unfit employee in this regard. If employers conclude that on the basis of three factors — the nature of the crime, the time elapsed and the nature of the job, that an applicant is ineligible, “then they have to do an individual assessment. There are eight different factors that the E.E.O.C. says you have to look at," she points out. “The employer has to have a dialogue with the individual, or at least give the individual an opportunity to provide a response about the fact that the criminal history makes them unable to do the job.”
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