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Dec. 16 --The Equal Employment Opportunity Commission Dec. 13 posted three new discussion letters on its website addressing prison inmates' concerns about post-incarceration employment and properly filing a discrimination charge under the Equal Pay Act.
“Excluding people from employment due to criminal records may raise issues under Title VII [of the 1964 Civil Rights Act], especially if it disproportionately harms people of a particular race or national origin,” EEOC Legal Counsel Carol R. Miaskoff wrote in response to the inmates' inquiries in informal discussion letters dated Oct. 24 and Nov. 20.
If an employer's policy of using arrest and conviction records in employment decisions results in disparate impact discrimination, then “the employer must show that its policy is necessary in light of: the nature and gravity of the offense or offenses for which the applicant was convicted; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought,” she explained in the letters.
The Oct. 24 letter is a response to an inquiry by “an incarcerated veteran” in a North Carolina prison “who anticipates significant difficulty finding employment and housing” after leaving prison, the EEOC said.
The prisoner, who is scheduled for release in January 2014, contacted the commission because of its updated enforcement guidance on employers' use of arrest and conviction records released in April 2012.
The EEOC has stressed to the public that the guidance does not prohibit employers' use of criminal background checks.
The Nov. 20 letter addressed a New York prisoner's request for “information about apprenticeship programs and employment training for ex-offenders,” Miaskoff said in the letter. The inquiry stated that the inmate expected “to be released in several months from incarceration, after serving a total of [six and half years],” it said.
Miaskoff told each prisoner “the EEOC's position” is that an employer should offer them an opportunity to provide “more facts” about their criminal record “before the employer makes a final decision.”
Those facts could include “information about prior, successful employment or participation in job training programs,” which “may demonstrate your knowledge, skills, and abilities,” Miaskoff said in the letters.
Another informal discussion letter dated Oct. 28 addressed an inquiry from a woman who worked as an investment professional with the Colorado Public Employees' Retirement Association.
According to the letter, also written by Miaskoff, the woman claimed that the state agency paid her “significantly less than similarly-situated men.” The association terminated her employment and she filed a charge with the EEOC under Title VII, alleging retaliation, the letter said.
The letter informed the woman that “[i]t appears from EEOC's records that your charge of employment discrimination was filed only under Title VII … which prohibits all employment discrimination based on sex.”
Although the commission “investigates and may try to conciliate Title VII charges against state government employers, such as the Colorado Public Employees' Retirement Association, [the Department of Justice] has the legal authority to sue them for employment discrimination under Title VII,” Miaskoff wrote.
In the letter, Miaskoff reminded the woman that the National Equal Pay Task Force, which was created by President Obama and involves collaborative efforts among the EEOC, the departments of Justice and Labor and the Office of Personnel Management, was established to provide recommendations about pay discrimination, but “does not have authority to investigate individual cases,” she wrote.
Miaskoff signed the November letter as acting associate legal counsel and the October letters as assistant legal counsel. The EEOC said the letters do not “constitute an official opinion” of the commission.
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Text of the Oct. 24 and Nov. 20 letters are available at http://www.eeoc.gov/eeoc/foia/letters/2013/title_vii_conviction_policy_veterans_10_24.html and http://www.eeoc.gov/eeoc/foia/letters/2013/title_vii_conviction_policy_11_20.html. Text of the Oct. 28 letter is available at http://www.eeoc.gov/eeoc/foia/letters/2013/equal_pay_act_10_28.html.
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