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EEOC says criminal background checks can lead to discrimination

Criminal background checks are often a fact of life for job applicants these days. The accessibility of online records means that any employer, big or small, can do a relatively low cost background check on a job candidate. Many employers say that they do this as a way to protect customers and other employees, but the EEOC says that the practice has an unintended consequence of racial discrimination.

The Equal Opportunity Employment Commission's new guidance notes that because of the higher incarceration rate for African-Americans and Hispanics, criminal background checks lead to discrimination for those job candidates. The guidance tells employers that to avoid violating equal opportunity laws, more attention should be paid to the details of a criminal record, rather than the fact that a candidate has a record.

About one out of every three African-American men and about one out of every six Hispanic men have been incarcerated in the past. The EEOC says that factors such as age of incarceration, rehabilitation, and the nature of the crime should all be taken into account when assessing a candidate, rather than just the fact of the arrest. The guidance also tells employers that they must differentiate between convictions and arrests and should give weight to an expungement.

While the guidance may be slightly more burdensome for employers seeking to make a new hire, it is certainly valuable in the effort to reduce systematic discrimination in the workforce. Discrimination based on race or ethnicity is prohibited under federal and state law, and no one should be denied the opportunity to work because they are a member of a minority group.

Source: Huffington Post, "Updated EEOC Guidelines Make It Harder For Employers To Discriminate Against Former Criminals," Sam Hananel, April 25, 2012.

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