Civil Rights Commission Holds Hearing on EEOC Enforcement Guidance Relating to Arrest/Conviction Records

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The hearing was held on December 7, 2012 in front of an eight-member panel that reports directly to the President and Congress. About 20 witnesses were heard. The discussion was, not surprisingly, partisan and political.

To backtrack, we discussed the EEOC guidance on arrest/conviction records in an alert dated May 9, 2012 (see for the guidance itself). A key case in that Alert was Green v. Missouri Pacific Railroad (or MOPAC) (1975) [523 F.2d 1290], in which the 8th Circuit outlined factors for assessing conviction. MOPAC had an absolute policy of excluding individuals convicted of crimes other than minor traffic offenses. Buck Green served 21 months in prison for refusing military induction, and was excluded by MOPAC for a clerk job. The district court granted summary judgment for MOPAC, but the 8th Circuit reversed, ruling:

We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed. This is particularly true for blacks who have suffered and still suffer from the burdens of discrimination in our society. To deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.

The 8th Circuit then outlined four factors for assessing conviction records, namely: (1) nature and seriousness of the crime in relation to the job sought; (2) time elapsing since the conviction; (3) degree of the felon's rehabilitation; and (4) the circumstances under which the crime was committed. These factors were referred to as the “Green factors” during the commission hearing.

As for the hearing itself, representatives for ex-offenders hailed the EEOC guidance as a warning to employers to cease using criteria that adversely affect opportunities for blacks and Hispanics re-enter the workforce. On the other hand, representatives of employers complained that the guidance presents legal complications for employers using background checks because they are compelled by federal, state, or local laws to exclude applicants based on particular types of past convictions.

Martin Castro, Chairman of the commission, and a Democrat, said the hearing was intended to explore whether the guidance encourages or discourages ex-offenders to re-enter the labor market, to which there were differences in opinion that broke down along party lines. For example, in response to Castro, Commissioner Peter Kirsanow, a Republican, agreed with employer representatives that the guidance lacks “safe harbors” for employers, and fails to recognize laws that compel employers to conduct background checks. He also said it is not a “judicious application” of Title VII adverse impact theory that places burdens on employers, particularly smaller ones, who “don’t know what to do with this thing.”

Carol Miaskoff, EEOC's acting associate legal counsel, opined that the guidance builds on prior EEOC policy statements from 1987 and 1990, and that even prior to the current guidance, many employers allowed individuals with criminal histories to explain their situations prior to an employment decision. She also suggested that the guidance itself merely reiterates the Green v. MOPAC ruling.

Commissioner David Kladney, a Democrat, opined that the guidance does not bar employers from using criminal background checks. Further, adding to what Miaskoff stated, he opined that employers can exclude based on conviction for violent crimes consistent the “Green factors.”

Commissioner Todd Gaziano, an independent, suggested the EEOC was “too heavy handed” with its adverse impact approach, and that the guidance could “backfire” if employers cease using background checks and hire fewer minorities [someone will have to explain to me how avoiding background checks reduces minority employment]

Donald Livingston, a management attorney and a former EEOC general counsel, questioned whether the guidance is merely a reiteration of the “Green Factors” on grounds that it requires individualized assessment. However, Miaskoff, the current counsel, stated the guidance does not require individualized assessments, but rather that such assessments can “at times be an important supplement” to the “Green Factors.”

Harry Holzer, a former Labor Department chief economist, called the guidance a “relatively sensible application” of the Green factors that does not pose “an enormous burden” on small businesses, and that it addresses socioeconomic problems faced by ex-convicts.

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