Off the Record: Why the EEOC Should Change Its Guidelines regarding Employers' Consideration of Employees' Criminal Records during the Hiring Process

By Carson, Emily J. | Journal of Corporation Law, Fall 2010 | Go to article overview
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Off the Record: Why the EEOC Should Change Its Guidelines regarding Employers' Consideration of Employees' Criminal Records during the Hiring Process


Carson, Emily J., Journal of Corporation Law


  I. INTRODUCTION
 II. Background
     A. The Use of Criminal Records During the Hiring Process Has a
        Disparate Impact on Minority Applicants
     B. The EEOC's Origins and Authority Regarding Title VII
     C. The EEOC's Current Guidelines Regarding Employers' Use of
        Criminal Records During the Hiring Process.
III. ANALYSIS
     A. The EEOC's Guidelines Lack Clarity and Deference
        1. Lack of Clarity in the EEOC's Guidelines
        2. Lack of Adherence to the EEOC's Guidelines Stems from a Lack
           of Deference
     B. The EEOC Recognizes that Changes Must be Made to Its Guidelines
     C. Problems Employers Cause When They Rely on Criminal Records
        Inappropriately
        1. Employers Make Blanket Policies Rejecting All Applicants
           with a Criminal Record
        2. Employers Waste EEOC Time and Resources When They Violate
           EEOC Guidelines
     D. Employers' Right to Use Criminal Records During the Hiring
        Process
 IV. RECOMMENDATION
     A. Make Guidelines More Explicit
        1. Type of Offense
        2. Time Since Last Offense
        3. Timing of Inquiry
     B. Make Guidelines More Readily Available to Employers and
        Employees
     C. Incentives for Employers
  V. Conclusion

I. INTRODUCTION

The United States releases approximately 700,000 inmates from prison each year. (1) Of those released, most are young men without a college education, and about two-thirds remain unemployed one year after their release. (2) Those who can find steady work after their release are both less likely to return to prison and more capable of taking on the social roles of spouse and parent. (3) Despite the obvious advantages to society, employers are less likely to hire people with criminal records than people without criminal records. (4)

Statistically, African American men are roughly six times more likely to go to prison than Caucasian men, and they are also overrepresented among released prisoners. (5) Thus, employers' refusal to hire individuals with criminal records creates a disparate impact on African Americans. (6) To help assuage and prevent this racially disparate impact, the Equal Employment Opportunity Commission (EEOC)--the commission Congress assigned to enforce its laws against race, sex, and religious discrimination in the workplace--should revise its guidelines to prevent employers from relying on criminal records inappropriately to exclude applicants with a criminal record.

This Note will discuss how and why the EEOC should revise its guidelines regarding the use of criminal records during the hiring process. Part II will discuss the history of the EEOC and the EEOC's current guidelines regarding employer use of criminal records during the hiring process. Part III will discuss how and why the EEOC should change its guidelines and the different perspectives regarding what these changes should entail. Finally, Part IV lays out specific recommendations regarding how the EEOC can change its guidelines to help minimize the disparate impact against minorities (7) during the hiring process.

II. BACKGROUND

To understand the need for a change in the EEOC's guidelines, it is important to be familiar with how the EEOC operates and how employers currently hire their employees. A discussion of how the use of criminal records during the hiring process has a disparate impact on minority applicants will highlight the need for a change in the EEOC's guidelines.

A. The Use of Criminal Records During the Hiring Process Has a Disparate Impact on Minority Applicants

The Civil Rights Act of 1964 (Civil Rights Act) was originally enacted to eliminate the last vestiges of Jim Crow laws (8) and segregation and deal with discrimination in voting, public accommodations, education, and employment. (9) Congress enacted Title VII of the Civil Rights Act (10) in 1964 to continue the practice of preventing employment discrimination started by "the Unemployment Relief Act of 1933, which provided '[t]hat in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed.

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