In 2016, over 90,000 claims were filed with the Equal Employment Opportunity Commission (EEOC). Forty-five percent of those claims involved retaliation in adverse action or discharge, making it the top charge against employers. This has been the trend since 2010 when retaliation first made the top of the list. From 2015 to 2016, almost 5,000 more charges of retaliation were filed as employers had to pay out $482 million in compensation for these cases.
In the past two years, Title VII of the Civil Rights Act of 1964 was used to bring forward more than one third of the retaliation charges that were filed with the EEOC due to the use of background checks by employers. Where criminal history is considered to make employment decisions, it may be a violation of Title VII prohibition against employment discrimination.
National data shows that excluding job applicants based on criminal history impacts certain racial groups unfairly. Throughout the nation, there is a movement to “ban the box” or remove the conviction history question on job applications and delay background checks until later in the hiring process. Over 150 U.S. cities and counties have already done so to promote fair hiring policies and encourage employers to consider a job candidate’s qualifications without the cloud of a criminal record hanging over them. As part of the Strategic Enforcement Plan of 2012, the EEOC is challenging employment policies and practices that could exclude applicants based on criminal history.
In 2005, the EEOC issued a letter stating that blanket policies that exclude all applicants with a criminal history violate Title VII because of the potential to disparately impact certain racial or ethnic groups. Only employers who can substantiate a business justification can use blanket policies.
Things to Consider When an Applicant has a Criminal Record
The EEOC’s Criminal History Guidance, released in 2012, provides more specific instruction to employers on how to avoid adversely impacting protected groups. It advises them to consider three things when assessing an individual’s criminal history:
- The nature and seriousness of the information that has been revealed
- The length of time passed since the offense or completion of a sentence
- The relevance of the information to the type of work being sought
Former President Obama supported ban-the-box initiatives and directed federal agencies to delay running background checks until later in the hiring process. There are 26 states that have similar policies, including New Jersey, one of nine states that has removed the conviction history question from work applications for private employers.
Cherry Hill Employment Lawyers at McOmber McOmber & Luber, P.C. Fight for Victims of Employment Discrimination
Do you have a criminal record and feel it is preventing you from a fair chance at finding employment?
Our attorneys provide exceptional representation in all matters of employment law and will fight to obtain the maximum possible compensation for your case. Call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, our Newark office at 973-878-9040, or contact us online, to schedule a free consultation today.