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Government to Contractors: Start Hiring Convicted Felons!

Posted by Shawn McCadden on Sun, Mar 24,2013 @ 09:30 AM

D.S. Berenson


Guest Blogger: D.S. Berenson is the Washington, D.C. managing partner of  Berenson LLP (, a national law firm specializing in the representation of contractors and the remodeling industry. He may be reached at

Equal Employment Opportunity Commission to Contractors:  Start Hiring Convicted Felons!

EEOC Says Hire Convicted FelonsOur friends at the Equal Employment Opportunity Commission (EEOC) have recently decided that “equal opportunity” should include convicted felons.  That is according to a bizarre and confusing “guidance report” recently issued by the EEOC directing employers to hire more felons and other ex-offenders .  And if you refuse?  Well, then you risk committing a federal crime.

The EEOC was originally established to enforce Title VII of the 1964 Civil Rights Act – allowing workers to bring suits and claims against employers for illegal hiring practices against minorities.  But like a number of federal agencies, the EEOC seems to be reinterpreting and expanding their mandate to fall into a more “politically correct” frame of mind these days. 

Some History

Hiring convicted felons

In the late 1980’s the EEOC sued a Florida trucking company because the company refused to hire a Hispanic man applying for an open truck driver position.  The company, Carolina Freight Carrier Corp., showed the EEOC that the man had multiple arrests and had served 18 months in prison for larceny.  “So what?” said the EEOC, that has nothing to do with his qualifications to be a truck driver.  The EEOC stated that company’s hiring practices created a disparate or unequal impact on minorities - and as a result was illegal.

The case went to court and was heard by U.S. District Judge Jose Alejandro Gonzalez Jr. (and, yes, he was Hispanic).  The judge, in ruling against the EEOC, summed the situation up nicely: "EEOC's position that minorities should be held to lower standards is an insult to millions of honest Hispanics. Obviously a rule refusing honest employment to convicted applicants is going to have a disparate impact upon thieves."

Not surprisingly, the EEOC ignored the ruling and moved ahead anyway. In 2012, the agency formally declared that that "criminal record exclusions have a disparate impact based on race and national origin."  (In plain English, that means that refusing to hire convicted criminals results in discrimination against minorities).


Background Checks before hiring

Catch 22?

With the most recent guidelines, the EEOC is now warning employers that refusal to hire job applicants due to a criminal past will be seen as a violation of the Civil Rights Act.  Sadly, the EEOC doesn’t tell us what to do when we hire a convicted felon, but then get sued when the convicted felon commits crimes against our customers and office workers.

For those who believe in the domino effect, stay tuned:  President Obama has just nominated Tom Perez to head up the Department of Labor. Mr. Perez currently sues banks for discriminatory lending practices in his role as head of the Department of Justice’s civil rights division.  His legal theory in these suits?   That employers are liable if their lending practices result in a “disparate impact” to minorities – the same theory now pushed by the EEOC in regard to employers refusing to hire convicted felons!


Topics: Hiring and Firing, Recruting, Guest Blogs, Legal Considerations, Government Regulations