The U.S. Equal Employment Opportunity Commission (EEOC) has just issued new Guidelines on employers’ use of criminal records to make employment decisions. Despite the opposition of employer groups, its guidelines represent a significant restriction upon what the EEOC thinks employers can do, and how employers can justify to the EEOC their use of criminal convictions in filling job openings. The EEOC’s assumptions that criminal convictions represent, without individualized analysis by the employer, non-job-related criteria and that different conviction rates among different ethnic groups create disparate impacts in the job market are unsupported by logic or by empirical studies of the justice system. A criminal conviction is not an immutable characteristic, nor is it a protected category under Title VII. Every state has collateral sanctions attendant to criminal convictions, which are given short-shrift by these Guidelines. Ohio, for example, has over 600 civil consequences for criminal convictions in areas of employment, civic participation, public benefits and so on. The new Guidelines give deference only to Federal collateral sanctions. This kind of expansionist activity by a government agency only serves to reduce the level of respect accorded to it, and diverts it from its core mission. Fortunately for employers, most of them can continue to do what they have been doing, and consider criminal convictions of job applicants in light of their own needs and the jobs in question, without engaging in expensive and superfluous analysis. If the EEOC chooses to bring an action, this is one area where the right to a jury trial will put the advantage in the employer’s corner.
