On August 5, attorneys filed an amended complaint against the Commerce Department noting that the EEOC had warned the Census Bureau in advance that its hiring procedures could result in “massive” racial and ethnic discrimination. In seeking to fill more than one million temporary jobs earlier this year, the Census Bureau subjected all applicants to an FBI records check and required that they provide written proof of the dispositions for any arrests or convictions.
Although people with criminal records are not specifically protected under the 1964 Civil Rights Act, using such criteria to deny employment has been found to have disparate impact on certain protected groups, and is therefore discriminatory.
In the lawsuit, which was brought by a coalition of civil rights organizations, attorneys allege that African Americans, Latinos and Native Americans who applied for Census jobs were at a disadvantage, since since these ethnicities experience a disproportionate number of arrests relative to their populations in the U.S.
Ironically, under the Census Bureau’s hiring procedures some applicants who actually worked during the 1990 Census were denied jobs this time around. Due to the ease of background checks, this also has become a problem in private industry, as laid off individuals – many of whom have been working productively for years – find old offenses coming back to haunt them in their job search.
As I wrote earlier, the EEOC is working to come up with new guidelines regarding the use of criminal records in screening. In general, employers are barred from using blanket bans and should be taking into account whether an offense relates to the work being done, as well as the individual’s suitability for the job. It may be justifiable, for example, for a company to decline to hire someone convicted of theft or embezzlement as an accountant or cashier. It’s less defensible to use an arrest record as a reason not to hire someone for such a job because they were convicted of a drug or alcohol charge, particularly if they’ve completed treatment and remained clean.
Let’s hope the EEOC comes out with something in writing soon. Perhaps these new guidelines might be more difficult to ignore.