A bill is being heard tomorrow in the Connecticut Joint Committee on the Judiciary that would require Connecticut employers to adhere the EEOC guidance on the use of criminal history information. CDIA opposes this bill. If the bill passes, Connecticut employers, unlike employers in most other states, would be required to comply with EEOC guidance that does not have the force of law.
Under the Civil Rights Act, EEOC guidance does not have and cannot have the force of law. The guidance the EEOC issued is just that – guidance – it is not law. This guidance has been widely criticized and subject to litigation. One of the most criticized parts of the guidance is the individualized assessment, which imposes a heavy requirement on employers to justify their background check policies. As noted in a critical law review article, the individualized assessment
is problematic in three important ways. First, the individualized assessment places an impractical burden by what it requires and whom it requires to conduct such an assessment. Second, employer liability for negligent hiring may actually increase if employers perform individualized assessments. Finally, the practical effect of the individualized assessment may be decreased employer reliance on criminal background checks…/1/
Less criminal background checking by employers could risk more crime in workplaces without a significant benefit to minority hiring./2/
/1/ Note, Hands-Tied Hiring: How the EEOC’s Individualized Assessment is Taking Discretion Away From Employers’ Use of Criminal Background Checks, 63 Clev. St. L. Rev. 541 (2015)
/2/ “Employers who conduct criminal background checks are, in fact, more likely to hire minorities, especially black males, than employers who do not conduct criminal background checks”. Id., citing Harry J. Holzer, Steven Raphael, & Michael A. Stoll, Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L. & ECON. 451 (2006).