President Barack Obama's Equal Employment Opportunity Commission announced last April that the "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions" would be updated so an employer's use of an "individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964."
EEOC spokeswoman Christine Nazer wrote in an e-mail to Breitbart News:
The EEOC does not--and cannot--force employers to hire ex-convicts... Our interest in employers making employment decisions based on arrest and conviction records is based on disparate impact and disparate treatment, as is explained in our guidance, which is by the authority of Title VII of the Civil Rights Act.
James Bovard points out in the Wall Street Journal that the EEOC began to broaden the definition of Title VII of the 1964 Civil Rights Act under the reasoning that "criminal record exclusions have a disparate impact based on race and national origin."
Though blacks make up only 13% of the U.S. population, more blacks were arrested nationwide for robbery, murder and manslaughter in 2009 than whites, according to the FBI. The imprisonment rate for black men "was nearly 7 times higher than White men and almost 3 times higher than Hispanic men," notes the EEOC. These statistical disparities inspired the EEOC to rewrite the corporate hiring handbook to level the playing field between "protected groups" and the rest of the workforce.
Bovard notes that EEOC moved against G4S Secure Solutions, a Pennsylvania based company that provides security guards for nuclear power plants and other high priority areas. EEOC went after the security firm for not hiring an individual convicted twice of burglary as a security guard; Pennsylvania state law does not allow the hiring of individuals with felony convictions as security guards.
EEOC's Nazer responded to Breitbart News' inquiry on the G4S case:
Confidentiality provisions prohibit us from ever publicly commenting on or acknowledging any charge of discrimination. Concerning our arrest and conviction guidance, witnesses at the USCCR meeting, including those representing employers, agreed that people with criminal records should not be banned forever from all employment. Also, decisions about employment should be made based on careful assessments of risk; they must not be discriminatory. The EEOC's guidance explains basic principles for making this distinction under Title VII of the Civil Rights Act.
Under Title VII, the EEOC's guidance focuses on disparate treatment and disparate impact analysis. For example, according to the EEOC, "A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability)."
Another example EEOC says is disparate impact liability is, "An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity."
National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.
Ultimately, the EEOC stresses the high incarceration rates of African Americans and Hispanics compared to the general population as the commission's justification for their policy:
Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.
The Commission, which has enforced Title VII since it became effective in 1965, has well-established guidance applying Title VII principles to employers’ use of criminal records to screen for employment. This Enforcement Guidance builds on longstanding court decisions and policy documents that were issued over twenty years ago. In light of employers’ increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, the Commission has decided to update and consolidate in this document all of its prior policy statements about Title VII and the use of criminal records in employment decisions. Thus, this Enforcement Guidance will supersede the Commission’s previous policy statements on this issue.