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EEOC guidance on hiring discrimination surprises many

In April, many business owners were caught by surprise when the Equal Employment Opportunity Commission (EEOC) indicated that it was starting to crack down on certain kinds of hiring practices. Specifically, the EEOC reminded business owners that with few exceptions, using the criminal records of applicants as an excuse not to properly consider them for hire amounts to illegal employment discrimination.

However, the New York Times recently reported that many business owners were not aware that this behavior was illegal in the first place. Even though the government has insisted for more than 40 years that this practice is illegal, a startling number of business owners believe that they may use criminal records to legally discriminate against applicants.

In April, the EEOC updated and clarified its position on use of criminal records in hiring. The new information "consolidates and supersedes" all other previous policy on the subject, according to the agency. The EEOC hopes that this new information will become well known and well understood. As a result, fewer applicants will be discriminated against and fewer employers will be surprised if they are held accountable for illegal hiring practices.

Of particular interest to many is the EEOC's new requirement that companies establish protocol to demonstrate and ultimately ensure that they are not using the criminal records of applicants to discriminate based on national origin or race. This new requirement suggests that this practice is occurring at a much higher rate than previously thought.

While it is sometimes legal to discriminate against applicants due to their criminal records, applicants must generally have been convicted; and convicted of a crime that would impact their potential position in some way in order to lawfully be disqualified from consideration.

Hopefully, the EEOC's guidance will aid business owners in adjusting their practices and aid applicants in understanding their rights under the law.

Source: New York Times, "U.S. Push on Illegal Bias Against Hiring Those With Criminal Records," Robb Mandelbaum, June 20, 2012

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