Would You Hire a Convict?
Many businesses are unaware that it’s illegal to discriminate against a job candidate with a criminal record.
In this relatively enlightened day and age, only the most foolish employer would refuse to hire a job candidate purely on the basis of their race. Many companies, however, are unaware that in the eyes of the law, it’s also considered discrimination to reject candidates only because of their criminal record.
In the near future, such firms have a bigger chance of getting in legal trouble for doing so. The government’s Equal Employment Opportunity Commission has indicated that it will begin to police and enforce transgressors of the law. The E.E.O.C. recently issued one of its periodic “enforcement guidance” notifications regarding these sorts of violations, meaning that it’s going to be on the lookout for them.
This initiative is particularly appropriate for these times, since the rates of arrest and incarceration have risen sharply over the last two decades or so. The guidance quotes research findings showing that in 1991, less than 2% of America’s adult population had done time. Ten years later, that figure had risen to 2.7% and in 2007 it stood at 3.2%. Simply put, there are more ex-cons and parolees out there, and sooner or later they’ll be looking for work.
This sort of discrimination is directly related to race. As the E.E.O.C. details in its guidance, arrest and incarceration rates are disproportionately high for men of African-American and Hispanic ethnicity. These individuals have an arrest rate that amounts to 2-3 times their proportion of the overall American population. In 2010, for example, 28% of all arrests in the U.S. were of blacks. That figure was exactly double the percentage of the American population blacks comprise.
The Commission points out, rightly, that arrest and incarceration are two separate happenstances and should be considered accordingly. Arrests happen with relative frequency, but for the most part they don’t result in a conviction; many employers don’t distinguish between the two. An arrested person might be the victim of mistaken identity, or the transgression that brought in the arrest might not have been severe enough to warrant justice.
It has become common, in a still-tight job market like the one we’re living through at the moment, for employers to be choosier in picking the right person for an available job. One by-product of this is the prevalence of background checks. According to a 2010 survey of businesses conducted by the Society For Human Resource Management, a whopping 92% of respondents said they had conducted such checks on at least some of their job applicants.
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If they base their ultimate hiring decision on the results of those investigations, they could be in for a nasty surprise. The E.E.O.C., as well as several other government bodies, has the power to bring charges against any violator for discrimination. And the Commission has been busy of late – in 2011, it brought nearly 100,000 charges against businesses. This is over 10,000 more than just four years previous, and an almost 20,000 increase over 2001’s level.
Discrimination in any form should certainly be penalized, whether it’s on the basis of race, age, gender… or anything else, including a person’s history with the law.