Remember the old Robert Johnson blues song where the protagonist goes down to the crossroads to meet the devil and make a bargain? Well, I went over to NoMa neighborhood of Washington, DC yesterday to watch the EEOC begin the process of formally reviewing the need for guidance surrounding the use of criminal records for employment screening. Not entirely dissimilar circumstances.
What I found is a government agency that seems disconnected from the business world in every way imaginable. I found people with an agenda to further, talking to an agency about social issues outside of the agency’s control. I found forthright, well meaning and committed panelists talking about prisoner reentry programs that worked. I heard justifiable outrage about discrimination in our justice system…
I heard about 38,000 collateral statutes on the books, 84% of which have some barrier to employment. I heard about unbalanced and disparate impact, and that we (you, me, and every other taxpayer) will collectively spend 68 BILLION dollars keeping people incarcerated.
What I didn’t hear much of were real solutions. The EEOC cannot successfully sue corporate America into fixing this problem; it’s just way bigger than that. Employers will continue to take the path of least risk when it comes to determining the most suitable applicant.
Someone made the comment during the hearing that “a jury would be less forgiving than an employer” meaning that employers that took a chance and hired someone with a problematic past, could find themselves trying to justify this act of altruism to a jury in the wake of a workplace issue.
Absent meaningful immunity protection employers will continue to make the best business decision available to them. For employers this has nothing to do with civil rights, it has everything to do with economics. Today’s economic landscape demands that employers hire the best of the best that they can afford.
Will the EEOC issue new guidance? I would say it’s pretty likely that we will see a series of clarifications over the coming months. It is clear to me that the commission is motivated to move quickly. I would not be surprised at all to see some significant restriction surrounding arrest records given the testimony.
I remain somewhat skeptical that new guidance will do much more than increase the already heavy burden placed on employers, but hope springs eternal.