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EEOC Updates Civil Rights Protections on Criminal Background Checks for Employment

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Both critics and fans of Supreme Court Justice Clarence Thomas might be surprised to learn that 2012 marks an anniversary in his career -- one that impacts millions of workers. Twenty-five years ago, under the aegis of then-Chair Thomas, the U.S. Equal Employment Opportunity Commission (EEOC) issued a sensible, balanced guidance on the use of criminal records in employment.

Last week saw a significant next step. On Wednesday the EEOC updated that guidance, reaffirming and further defining the legal standard: Under Title VII of our civil rights laws, employers may not deny employment based on a conviction except when the offense is job-related. With this standard, employers can protect their business interests and safety on the job, while qualified workers can still have a fair chance at the job.

Now, more than ever, the guidance of the EEOC is sorely needed.

A staggering 65 million U.S. adults carry the stigma of an arrest or conviction, at a time when economic recovery is uncertain and jobs remain scarce. Job seekers desperate for a second chance are stymied at every turn. As one researcher found, job applicants with a criminal record are 50-percent less likely to receive a callback. Meanwhile, the use of background checks over the last decade has grown exponentially, revealing even minor or decades-old convictions. With so much information now available on the Internet, workers are stuck with their past -- even when those records may be inaccurate or misleading.

It's illegal for employers to ban all applicants with criminal records, but these blanket no-hire policies persist, as documented in a report that the National Employment Law Project released last year. For example, Pepsi recently agreed to a $3.13-million settlement for having a blanket policy denying jobs to anyone with an arrest -- even if that arrest never led to conviction and was for a very minor, non-job-related charge. African Americans and Latinos, who are overrepresented in the criminal justice system and face high rates of unemployment, are particularly hard-hit by these unfair and illegal no-hire policies.

The updated EEOC guidelines released last week build on our nation's longstanding recognition of the "disparate impact" that criminal background checks have on workers of color, who are protected against employment discrimination by Title VII of the Civil Rights Act of 1964. Disparate impact analysis is rooted in over four decades of firmly established jurisprudence. It was formally recognized in a landmark U.S. Supreme Court case in 1971, and affirmed in 1972 and 1991 amendments to Title VII signed by Presidents Nixon and Bush, respectively.

Although the Chamber of Commerce and the background check industry came out swinging against the new guidance last week, the EEOC passed it in a bipartisan 4-to-1 vote. And contrary to the Chamber's claims, the EEOC's update was informed by a thorough, deliberative process that provided substantial opportunity for public input. The agency held formal evidence-gathering meetings in 2008 and 2011, participated in public conferences about the criminal records issue, and was available to stakeholders throughout its deliberations. Illustrating the breadth of public outreach and awareness, 300 comments were received after the July 2011 meeting, 2-to-1 in favor of updating the guidance.

What began 25 years ago with then-EEOC Chair Clarence Thomas has now been brought up to date under the stewardship of EEOC Chair Jacqueline Berrien and the other commissioners -- both Democrat and Republican -- who recognized the new reality of criminal background checks and the urgent need to respond with an updated guidance. This action couldn't be more timely. Millions of workers trudge through unnecessary and unfair barriers to employment -- barriers to supporting their families -- while too many employers still don't get it. With the updated guidance, we can find the right balance for our communities to thrive. More job seekers will be able to get a foot in the door, and employers will have access to a fuller range of loyal, qualified workers.

In the end, the EEOC's timely and necessary update to the guidance sent a strong and clear message about how and why criminal records checks run afoul of Title VII, and what employers can do to meet their business needs without discriminating against qualified job applicants.