Word Association with the EEOC’s Latest Background Check Hearing

Nick Fishman

Oh don’t mind me.  I’m just playing word association with the following phrase “EEOC Meeting to Discuss Use of Criminal Records”.  Feel free to send in your own suggestion for my word cloud above.

Why the sarcasm?  Where to start?  We asked earlier this week if the EEOC was willing to have an honest and open dialogue on employers’ use of criminal background checks. We got our answer pretty quickly.  If the list of those who would testify wasn’t answer enough, check out the press release which the EEOC distributed just hours after the 4 hour meeting was concluded.  The key word here is “distributed” since it was clearly “written” well before the meeting.

Instead of listening to both sides of the issue, the EEOC paraded out a cadre of individuals damning the use of criminal records in the hiring process.  No one was there to talk about the liability employers face.  No one was asked to talk about the victims of violent criminal activity in the workplace.  No one was called on to talk about the mounting losses employers shoulder due to internal theft.  Oddly, no one was there to discuss the nation’s largest consumer of employment background checks, the U.S. government whom the last time I checked, the EEOC was a part of.

They favored testimony from the Department of Justice who offered the Blumstein study on the point of redemption as ironclad and unimpeachable rather than as a limited study, based on limited criminal activity, based on a limited geographical area.  They listened to testimony that the FBI’s database only includes about 50% of all criminal records.  Never mind that those in our industry use far more accurate methods to conduct criminal background checks.  They heard testimony that talked about employers running roughshod over applicants’ rights and ignored that fact the the FCRA and state laws provide protection.

According to those in attendance, here’s where it stands.  There are two EEOC commissioners who think that the commission should overhaul their guidance on employers use of criminal background checks.  There are two commissioners who either think that the current guidelines are sufficient or should be slightly modified.  And there is one commissioner who seems to be in the middle and will most likely be the ultimate deciding factor.

In the meantime, the EEOC has allowed a 15 day comment period on the issue.  Perhaps they’ll consider opinions counter to theirs’ then.  I’ll be holding my breath until then.

Stay tuned.  We have definitely not heard the last of this issue.

P.S. Once the smoke clears out of my ears, I’ll publish some of the materials that were provided to the EEOC in support of criminal background checks.

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