Are You Discriminating Because You Use Background Checks?

Jennifer Gladstone

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“Have you ever been convicted of a felony or a crime?”

Chances are you have answered this on a job application somewhere down the line, and now you might even be the one asking the question.  

According to the EEOC, asking the question is not the problem, but how you USE the answer could get you sued. To add more complications to this already complicated issue, the U.S. Commission on Civil Rights now says a recent push by the EEOC opens business owners up to all kinds of lawsuits. More on that a little later.

First, an estimated 65 million Americans have some kind of arrest or conviction record that will show up during a routine background check. According to the EEOC, one in three black men and one in six Hispanic men will be incarcerated at some point during their lifetime. Only one in 17 white men will spend time behind bars.

Michelle Rodriguez, an attorney for the National Employment Law Project, told the Wall Street Journal that things have changed over the last few decades. She says more people are sent to prison for drug crimes, making this a bigger problem for employers. “It really could be anybody who has a criminal record now -- your co-worker, your neighbor,” she said. “And it doesn’t mean they’re a criminal, it means they had a run-in with the law.”

According to the EEOC, an employer that disqualifies candidates purely because they have a criminal record is violating the applicants’ rights. Instead, the Commission wants employers to make decisions on a case-by-case basis. That means conducting an individualized assessment of each applicant’s criminal record before removing their names from consideration.

Questions that need to be asked include how long it has been since the crime was committed, and whether it has anything to do with the job the applicant is seeking. For example, should a 30-year-old with a solid work history be handicapped for getting arrested for underage drinking in his teens? Kicking this applicant out of the running would be questionable.

But these situations are not always simple, and they can put employers in an uncomfortable spot. Bob Capwell, Chief Knowledge Officer for EBI, Inc. says the EEOC guidance document “makes the decision making process arduous. How can employers say something is appropriate or not?”

It can be a real Catch 22, especially in urban areas. So many people get arrested on drug charges and do their time. But once they get out, they have trouble finding a job, and then end up re-offending. It can be a vicious cycle.  

Members of the U.S. Commission on Civil Rights have long argued that these EEOC guidelines are not only deeply flawed, but that they put employers into an impossible situation… they can use background checks and get sued, or they can put themselves at risk for a negligent hiring lawsuit if an ex-felon causes problems on the job.

Commissioner Peter Kirsanow once pointed out that the EEOC’s guidelines are practically impossible for a layperson to apply. He also points to a different statistic… only 6.6% of all Americans have ever been incarcerated. He says reading the EEOC’s guidelines make it seem like, “every other person you see on the street has been incarcerated.” He says that since 93.4% of all Americans never serve time in prison, spending time in prison DOES set you apart, even if the EEOC doesn’t want to admit it.

Employer Guide to Adverse Action

Background Checks

Jennifer Gladstone

Posted By: Jennifer Gladstone

Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.

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