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City Councils Attempt to Interpret EEOC Arrest Record Guidance

Back in May, the EEOC issued new guidance about the extent to
which employers could use a job applicant’s criminal arrest history as a factor
in the hiring process. Our
blog post about the issue summarizes some of the key findings
, and I will
repeat a few here for clarity. “The ability to do a background check on a job
applicant has not been substantially limited. What has been greatly changed is
the employer’s use of information obtained in a background check. Employers
have been asked by the EEOC to no longer throw out an application because of a
prior arrest or general conviction.” Now, city councils are struggling to match
new legislation that incorporates that guidance.

In both Seattle and Washington, D.C., city councils proposed
ex-offender workforce re-entry bills that are causing some controversy
. The
EEOC has said that using an arrest record as a strict disqualification for
employment could be a potential violation of Title VII, and encouraged
employers to make an individualized assessment. The D.C. bill attempts to give
limited liability to employers who hire ex-offenders, while the Seattle bill
only allows an employer to consider an applicant’s criminal history once a
provisional offer of employment has been made.

There are outside concerns that these bills would impair employers’
ability to ensure a safe workplace, and to prevent cases of negligent hiring,
instances that are very damaging to the perception of an employer’s business.
The bill’s supporters say that employment opportunities can help to cut down on
recidivism, but opponents worry the “good standing” provision of the D.C. law
might push ex-felons into work too quickly.  In particular, they note that the EEOC’s
guidance allows ex-offenders opportunities to demonstrate their fitness for a
position through character references and job training.

Opponents
also note that the D.C. law does not completely insulate an employer from liability
from negligent hiring. Proponents counter by stating the law attempts to get
ex-offenders jobs, and encourages employers to hire ex-offenders by offering
limited liability as an incentive. Some would like the law to extend to barring
evidence of an arrest that did not lead to a conviction. It’s likely that in
the future more cities and municipalities will have to deal with these legal
issues in interpreting and tailoring the EEOC guidance to local circumstances.