Employers Can’t Refuse to Hire Felons

The U.S. Equal Employment Opportunity Commission (EEOC) is filing lawsuits against both BMW and Dollar General over discriminatory hiring practices. In the BMW case, people were asked to reapply for jobs and were subjected to criminal background checks. After failing the background check 88 people were fired, 70 of which were black. Dollar General revoked job offers to two black women after conducting criminal background checks.

The EEOC claims this violates Title VII of the Civil Rights Act by disparately impacting blacks. The commission ruled 4-1 in 2012 that blanket policies that ban hiring convicts are discriminatory, because a disproportionate amount of convicts are black and minority. Businesses must have a rational reason to refuse hiring convicts, such as a pre-school which would have the employees working around children.

There are over 2 million individuals currently incarcerated, and roughly 95% will be released at some point. Incarceration for black males is roughly 10%, compared to 1% for whites. A black high school dropout without a GED between the age of 20 and 34 is more likely to be incarcerated (37.1%) than employed (26%). These convicts face a bleak job picture upon release. Incarceration history reduces hourly wages for men by approximately 11%, annual employment by 9 weeks, and annual earnings by 40%.

Still, employers are allowed to request background checks. It is well within a business’s rights to know the criminal history of their employees. The Army does not allow convicted felons to join, unless they receive a waiver in a time of high demand. The question at hand is how far the EEOC can reach into a private business’s employment practices when it comes to incarceration as a valid consideration. Are felons now a protected class?


Podcast – Criminal Background Checks – The Adam Goldfein Show – Hour 1

Podcast – Criminal Background Checks – The Adam Goldfein Show – Hour 2



Additional Resources

The Washington Post, Two Companies Accused of Discrimination in Hiring: http://www.washingtonpost.com/business/economy/two-companies-accused-of-discriminating-in-hiring/2013/06/11/b4d4f292-c173-11e2-8bd8-2788030e6b44_story.html?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost

U.S. Equal Employment Opportunity Commission, EEOC Files Suit against Two Employers for Use of Criminal Background Checks: http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm

Criminal Records/Background Checking Laws: http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CEYQFjAA&url=http%3A%2F%2Fwww.shrm.org%2FLegalIssues%2FStateandLocalResources%2FStateandLocalStatutesandRegulations%2FDocuments%2FCriminalandbackground%2520checks.pdf&ei=Pc-5Uc6kBYfO8wSPiYH4CA&usg=AFQjCNF48IfTLnGupqpyCXYhcqqNb9ogBg&sig2=XDZnkbMW-afituN1jElZTQ&bvm=bv.47883778,d.eWU

Bureau of Justice Statistics, Jail Population Increases after Three Years of Decline: http://www.bjs.gov/content/pub/press/jim12stpr.cfm

Princeton, The Mark of a Criminal Record: www.princeton.edu/~pager/pager_ajs.pdf

Pew, Collateral Costs: www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Economic_Mobility/Collateral%20Costs%20FINAL.pdf

Formerly Convicted Citizens Project, Ban the Box: http://citizensprojectpgh.org/ban-the-box/


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