EEOC: Criminals Have More Rights Than Gays To Employment

The EEOC is very clear that federal anti-discrimination laws do not allow it to enforce the protections that prohibit discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation. If you're a person with a criminal record, the EEOC takes a much different view. While the EEOC acknowledges there is no federal law prohibiting an employer from asking about arrest and criminal convictions, it says employers cannot use this information as a basis for denying employment opportunities, even if the employer believes the person engaged in the conduct for which he or she was arrested. The EEOC specifically provides this guidance to employers on pre-employment inquiries about arrest records and criminal convictions:

There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable. 

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

•     considering the nature of the job,

•     the nature and seriousness of the offense,

•     and the length of time since it occurred.

This is also true for a conviction.

The EEOC statement notes some states have specific laws prohibiting employers from inquiring about a job applicant's arrest record or making employment decisions based on an applicant's past criminal convictions.

A post on HotAir indicates this advisory was added to the EEOC's website in the past 10 days.