April 25, 2012 was a very significant day for many millions of Americans: It was the day that the Equal Employment Opportunity Commission (the EEOC) adopted an updated enforcement guidance governing criminal records, replacing prior guidances reaching back to the 1980s. The Guidance reaffirmed that an employer’s decision making based on criminal records could constitute race or national origin discrimination in violation of Title VII if the employer’s criteria has a racially disparate impact and is not job related and consistent with business necessity.
Unlike prior versions, the 52-page Guidance is a detailed discussion of employer consideration of criminal records, including thorough reviews of the applicable law and social science and the endorsement of certain principles, such as individualized assessment of job candidates to determine the level of risk that they present. While it has received extensive public support, the Guidance is not without some detractors, particularly from some in the employer community and the management bar.
This paper shares the experience Community Legal Services, Inc., of Philadelphia (CLS) with respect to the Guidance. As we annually represent many hundreds of people whose criminal records (including non-convictions) present an employment barrier, we have seen how a large and broad set of employers has responded to the Guidance. We also can speak to the significance of the Guidance to job applicants. We offer this snapshot with the hope that it can inform evaluation of the importance and the outcomes of the Guidance, including employer compliance, after a year. Our conclusions are the following.
- The Guidance is extremely important to the approximately 28% of the adult population that has a criminal record presenting an intractable employment barrier.
- While there is hope that these people’s employment prospects have brightened as many employers have attempted to comply with the Guidance, we have many examples of employers, including major national companies with workforces in the tens of thousands, that have not.
- Employers that are over-broadly rejecting people with criminal records from their applicant pools are eliminating a large percentage of the labor force and depriving themselves of excellent job candidates.