The Possibility of New EEOC Guidance- The Impact on HR and Beyond
Many HR professionals are acutely unaware that a sleeping giant is awakening tomorrow to determine the fate of the use of criminal records in the employment process. Fewer still are prepared for the consequences should their usage be limited or altogether curtailed by the guidance that will be forthcoming. I have no idea what is in store for HR Professionals should the EEOC provide guidance designed to limit the use of criminal record information. I do know one thing, a world in which criminal records are no longer available to help employers make informed hiring decisions would be detrimental to business, our economy and the safety and well being of every interested party, job applicants included.
The EEOC is tasked with eliminating workplace discrimination and discouraging practices that would directly or indirectly have a disparate effect on any one group of individuals. There are questions that are off limits on an employment application and that may not be asked in a job interview. Age, national origin, disability information are some of the more obvious classifications that are protected by the commission. After tomorrow, criminal record information may join that list. The how and the why of the commission’s actions and rationale is lengthy and as you can imagine politically charged. This post will focus on the impact both direct and indirect of guidance that would limit criminal record information by employers.
So lets just stop and take a trip back in time, (because that is really where we will be headed if criminal history information is no longer available to be used at the employers discretion, in accordance with current guidelines) and examine the specific groups that will be affected:
1.) Human Resource Professionals: This is by far the most obvious of the groups affected by any changes that would be enacted with the guidance. As I have witnessed first hand in my twelve plus years in the screening business, criminal record information is only one of many factors used when determining someone’s eligibility for a particular job. A 2010 survey conducted by SHRM attests to the practices of adhering to the guidelines by the EEOC that are currently withstanding.
http://www.shrm.org/Advocacy/PublicPolicyStatusReports/Courts-Regulations/Documents/CriminalRecords%20SHRM%20written%20submission%20eeoc%208%2010%2011.pdf HR professionals are a risk averse group by nature. If criminal history information is limited for consideration, other screening measures will simply be enacted or will be weighted more heavily. The caveat there is that many of these alternative practices such as obtaining references, and hiring people who are known throughout their industry and/or organization will be used to mitigate the risk associated with hiring an unknown candidate. This both limits the applicant pool which has negative consequences for both employers and applicants AND leads to scenarios where discrimination could more readily flourish.
2.) Employees: Workers have come to expect that employers have done their due diligence prior to employing people in their place of business. Just as Megan’s Law allows one to search for registered sex offenders in a neighborhood prior to purchasing a home or renting an apartment, the US workforce has come to assume that employers have taken it upon themselves to do what is reasonable to ensure a safe and secure place in which to work. Without the use of criminal record information, the landscape changes drastically. Thinking about taking your family to the company picnic? If you have small children, you might reconsider. How many woman have stayed late at the office to finish a project, and found themselves in the elevator heading down the to the parking lot with a male coworker. Imagine their unease if a workforce was to become unscreened.
3.) Business and the Economy: Screening employees for criminal records keeps workplaces safe and businesses profitable. Risk mitigation is a cornerstone upon which our economy is built. One only needs to look to the insurance or financial sectors to see proof. If one removes the ability to mitigate risk, it increases the cost of doing business, thereby driving up prices. The bottom line is that the consumer ends up paying the price in the long run.
4.) Job Applicants: Criminal history information allows job applicants to provide information about themselves that is for all intents and purposes objective information by which their employer can make an informed hiring decision. It can and does eliminate the unease in hiring someone who is not a known entity to an organization. It also allows for the bias to be removed in the hiring decision. While we may be reluctant to admit this, physical features, cultural attributes such as piercings and tattoos, dress and mannerisms, factor into the employment decision. Without a criminal history, job applicants who are less familiar in terms of their cultural and other attributes may be considered less desirable in terms of hiring for a particular position or at a particular company.
Unfortunately, the effects of any guidance further limiting the use of criminal records in the employment process will be far reaching and many of the consequences will be unintended. While the new guidance may be aimed at assisting one subset of our population, those who have criminal records, the cost to business and the potential loss of public safety is a price we are all going to have to share.