What is the EEOC doing?

We’ve all see the recent spate of EEOC lawsuits alleging that companies have engaged in discriminatory hiring practices because the companies chose not to hire people with criminal records and this practice disproportionately excluded people from protected classes. And now, several state attorneys are opposing the EEOC’s guidelines and latest lawsuits.

Some people may wonder, what is the EEOC? It the Equal Employment Opportunities Commission, a federal agency that is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

In these recent lawsuits, many believe the EEOC is attempting to make “criminal history” one the protected classes referenced above. Statistics show that more people from some of these protected classes are prone to criminal activity so a higher proportion of them are rejected for employment opportunities due to their criminal history.

Regardless of statistics or unintended consequences, we believe that companies should be allowed to exclude anyone who has a criminal record, out of concern for protecting the company’s stakeholders and assets. We are not saying that people with a criminal record should not have access to employment. We are saying that when it comes to considering a person’s criminal history, employers should get to choose what they feel is best for their companies.

The fact that a person committed a crime demonstrates a reckless disregard for others and there is a significant risk that such selfish behavior could resurface at any time. Should it resurface while the convicted criminal is on the job, it could place other employees, customers or vendors in harm’s way. Any resulting harm could be compounded by a negligent hiring lawsuit, costing the company millions of dollars in legal fees, a settlement and replacement expenses – not to mention lost business from reputation problems caused by negative media coverage.

That said, the EEOC has followed a practice that may be useful to all companies.

So what is the EEOC doing? They are making merit-based hiring decisions to avoid discrimination claims.

In 2010, the EEOC interviewed several applicants for an investigator position. A 71-year old woman was among the finalists. However, the job was ultimately given to a 35-year old.

The 71-year old sued on the basis of age discrimination – and lost.>

It turns out the 35-year old possessed a law degree and the interview panel agreed that having this degree made the 35-year old more qualified for the job, even though the law degree was not required for the position.

Companies would do well to emulate this practice in their hiring decisions.

For example, two people apply for a job and both seem qualified. It is subsequently discovered that one has a criminal record. The other, who does not possess a criminal record, happens to possess a degree or certificate or unique experience acquired from a past position, which demonstrates superior knowledge, skills or ability related to performing the job.

A company could base their hiring decision not on the one person’s criminal record, but rather on the superior knowledge, skills or ability of the other applicant, even if these additional factors were not required for the position.

It seems this would be an acceptable and defensible practice that would not run afoul of EEOC guidelines on background checks because the EEOC made a hiring decision using this same rationale.

You shouldn’t have to protect your company from an EEOC lawsuit when you want to avoid hiring a criminal. Thanks to the EEOC, now you don’t have to.

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