Are Criminal-Background Checks Discriminatory?

The story caught some employers off-guard: “Federal EEOC Warned Census Bureau of Likely Discrimination.” The article describes a lawsuit brought by the EEOC and others against the U.S. Census Bureau alleging the bureau’s system of criminal-background checks unlawfully discriminated against up to 100,000 Blacks and Latinos “who are more likely to have arrest records than whites.”

Although pre-employment checks are common, particularly for federal employees in a post-9/11 era, this practice is fast becoming an area of hot litigation. In 2003, the Society for Human Resource Management noted that 80 percent of its members conduct pre-employment criminal-background checks. Employers beware: The EEOC is leading the charge, but the plaintiffs’ bar is not far behind. Because background checking is usually a “systemic practice,” if it is found to be unlawful, the damage exposure could be huge.

Why Employers Conduct Criminal-Background Checks

Employers conduct criminal-background checks primarily to protect:

  • Their customers
  • Their employees
  • The general public
  • Their property
  • Their reputation and assets from legal liability

Some businesses, such as daycare centers, nursing homes, hospitals, nuclear power plants, educational institutions, transportation agencies, law enforcement, and security firms, must be more concerned than others with the safety of their customers. Even without a statutory mandate, the rise in “negligent hiring” claims with large potential damages, along with heightened sensitivity to workplace violence, post-9/11 security concerns, and increased liability of company officials, has enhanced corporate wariness of hiring high-risk applicants. Reliable criminal-background checks can assist employers’ efforts to reduce that risk.

Why Would Anyone Oppose Criminal-Background Checks?

Several reasons:


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  1. Civil-liberties advocates and criminal-justice reformers oppose background checks because they often rely on inaccurate records and reduce opportunities for ex-offenders to make a full and productive return to society.
  2. According to the EEOC, it is unfair and a violation of Title VII to rely on arrest records only, where not supported by a conviction. Even where there is a conviction, the EEOC’s position is that the applicant should not be barred for offenses that do not “present an unacceptable risk.”
  3. Many state legislatures concerned with employability of ex-offenders are enacting or considering statutes limiting the use of criminal-background checks. For example, Hawaii limits employers’ background checks to convictions within the past 10 years that bear a direct relationship to the responsibilities of the position.

Do Criminal-Background Checks Disproportionately Screen Out People From Underrepresented Groups?

It is both conventional wisdom and the position of the EEOC that employers’ use of criminal-background checks may violate Title VII because non-whites are disproportionately represented among those with criminal records.

However, a 2006 study in the University of Chicago’s “Journal of Law and Economics” found otherwise. The study concluded that “employers who check criminal backgrounds are more likely to hire African-American workers, especially men. This effect is stronger among those employers who report an aversion to hiring those with criminal records than among those who do not.”

In theorizing why criminal-background checks lead to increased hiring of Blacks, the authors observe: “In the absence of criminal-background checks, some employers discriminate statistically against Black men and/or those with weak employment records.” As another University of Chicago professor suggested, “in the absence of accurate information about individuals’ criminal histories, employers who are interested in weeding out those with criminal records will rely instead on racial and gender proxies.” That is, they are more likely to assume the prejudicial view that non-whites have criminal records, absent the facts.

Is the EEOC Actively Seeking to Limit Criminal-Background Checks?

In 2005, the EEOC issued an informal discussion letter taking the position that an employer using a “blanket policy” of refusing to hire anyone with a history of arrest or convictions violates Title VII because the policy “disproportionately excludes members of certain racial or ethnic groups, unless the employer can demonstrate a business need for use of this criteria.”

In September 2009, the EEOC filed the lawsuit EEOC v. Freeman Companies (Federal District Court, Maryland), alleging that the company used criminal-background checks to “unlawfully deprive a class of Black, Hispanic and male job applicants of equal employment opportunities.” The case is in the discovery process. (The EEOC filed another case, EEOC v. PeopleMark [Federal District Court, Michigan], with similar allegations.) As further evidenced by its recent lawsuit against the U.S. Census Bureau, the EEOC is leading the effort to curtail employers’ use of criminal-background-check policies.

Do Criminal-Background Checks Violate Title VII?

This area of law is evolving. The cases recently filed by the EEOC will likely provide guidance to employers in formulating their policies and practices. Until then, one recent U.S. Court of Appeals (Third Circuit) case sheds some light on where the law is headed. In El v. Southeastern Pennsylvania Transportation Authority, the employer terminated a traditionally underrepresented employee who transported individuals with mental and physical disabilities when the employer’s post-hiring criminal-background check disclosed a 40-year-old conviction (with no subsequent criminal activity) for second-degree murder. The court held that the employer must demonstrate that the criminal-background check is “job related” and that the disqualification is required by “business necessity.” The court ruled that the employer adequately demonstrated the severity of the crime and the heightened vulnerability of its passengers with disabilities. The court implied that some criminal-background-check policies may violate Title VII, although the employer’s policy in this case did not.

How Can Employers Legally Conduct Criminal-Background Checks?

This has suddenly become a tricky area of the law, and until further case law is developed, employers conducting any type of routine criminal-background checks may be vulnerable to challenge. Here are several tips to assist employers:

  1. With the assistance of your legal advisers, know the statutes, regulations and case law in your jurisdiction. There are differences among the states, and between federal law and the states, that must be taken into account in considering workplace screening policies.
  2. Review current criminal-background-check policies for consistency with the “business necessity” requirement and the EEOC position. To the extent the EEOC’s position is upheld in the courts, employer policies that take into account the nature and severity of the offense, the length of time since conviction, and the relationship of the offense to the job sought are more likely to be upheld. If necessary, modify pertinent policies and applicant questionnaires to reflect these considerations.
  3. Routinely audit applicant/hire files to determine whether your criminal-background-check policy disparately impacts any group. If so, explore the reasons for the disparate impact, and if it is not justified by business necessity, amend the policy and its implementation.
  4. If this is an area of particular concern to your business, monitor your local and federal legislative developments, and examine whether your company should lobby on this issue. This area of the law is actively changing, and employers need to be vigilant in monitoring the latest developments and implementing best-practices compliance policies.

This is not and should not be relied upon as legal advice; as with any legal question, consult a qualified attorney.

Weldon Latham is a senior partner in the Washington, D.C., regional office of Jackson Lewis LLP, chair of the firm’s corporate diversity counseling group, and counsel to the PepsiCo Global Diversity and Inclusion Governance Council and the Omnicom Group Diversity Development Advisory Committee. He is also a professor teaching corporate diversity at the Georgetown University Law Center.

40 Comments

  • This is a very tricky area of the law that could potentially go to the supreme court in the next decade or so. In most cases, the past is the best indicator of the future, and the past is generally all an employer has in making a hiring decision (convictions, references, job length, etc). Employers, as mentioned, have a legal responsibility to protect their employees, and customers from forseeable harm, including felonous actions by employees. If businesses were forced to ignore past convictions, while still maintaining liability of employee actions, you would most likely see a drastic cutback in hiring, extreme forms of nepotism in what hiring remains, and a general distrust of businesses by american consumers (who after all, would want to give personal info, or entrust a child to a potential theif, or pedophile). Simplistic examples, I know, but the point is the same. People would become fearful of interaction, because they would have no idea if that person has a criminal record. Fair or not, a past conviction does say something about a person’s character. You do not get a felony for arriving at work late one day, missing the bus home, skipping church, etc. In the end, I don’t think businesses have much to fear, logical and rational hiring decisions based on a person’s past is the only way to employee individuals. Understandably, some minority groups are overrepresented in the legal dept, and that’s an issue that needs to be solved in the social stuructures of America, not by the Wendy’s or H&R Block down the street.

    • Jay Afpdams

      Why do you list convictions prior “references, job length, etc.”? As the federal government has recently stated you must take into account length of time since conviction, number, and relevance to the CURRENT position. In fact, with the ever increasing “ban the box” movement, now in over half the states and many major economic cities, you can not even ask about criminal history. If a 30 year old misdemeanor for a college shoplifting prank keeps you from hiring a qualified candidate, over a non-qualified candidate, than perhaps you should avoid “skipping church” as we’ll as re-evaluate your current business model.

    • I will have to disagree, Everyone makes mistakes. Maybe that person was going in the wrong direction in their life before they saw the light and decided to make a change for the better? It is inhumane to punish someone because they made a mistake. Let the check see how long its been since their last arrest and go from there. If its been 5+ years with no convictions, I feel it is safe to assume they’ve changed.

      • i agree with you when I was 18 in 2009 i got caught shoplifting and was convicted. I t is now 2014 and i still can’t get a job because of it. I havnt shoplifted since i got caught 5 years ago not even when it had been a week since i last ate. By nobody hiring people who are like me and have changed they are going to make us resort to criminal activity so we can stay alive.

        • I live in FL, got turned down for jobs asking for background checks because of 3 DUI’s….Age 18, 38, and 40. Have not drank since. Now cannot get hired to verify insurance? Seriously? No chance in bettering life? The law forgives you after you pay, but no hiring in medical field? I own my own house, also paid my dues…Why can people on Welfare win with not taking drug tests and background tests, get section.8 and free housing, government officials fought not to be tested and won, I have no problems, but out is legal for a company to turn me down over a background test? I’m white, guess I’m a minority now and do not get a chance in life…How pathetic!!

    • We all know that Criminal Background checks are in fact are being used to ostrisize and exclude Black male from gaining employment. The process is being abused and the only way to make sure everyone is being treated equally and is being fairly considered for a job position is to make it illegal to ask this question. When put on the spot and asking Employers if they would hire an ex-felon 90 percent said they would but yet the statistics do not back that number up so one has to believe they are lying and not hiring eligible Black Males. Even a White Male with the same conviction is hired over a Black Male. What I do not understand is Politicians,EEOC, and all other affliated agencies are aware of these practices and do NOTHING to change it. The EEOC has tried ONE case and found in fact it was Discrimination and STILL done nothing to protect Black Males.

    • Well they need to mention the insurance side of t he situation.

  • It depends upon the job, offense, when the offense was committed, if there was a conviction, age of defendent at the time of the arrest. Whether or not the record was sealed. Every applicant is different. Employers can’t judge every prospective employee the same.

    • well….i have been out over 19 years and still in the southern part of the Us, They are not trying to give anyone a chance. However since I have been out….. I have been on my job for ten years. I have seen how big companies operate. You are judged before you are spoken to. Companies do what they want , they only care about money ….not the people that help them make it.

  • Anonymous

    i truly bellieve there are alot of drug convictions, in which a person has served his or her time, therefore, should not be convicted again thru back ground checks from an employer especially if this person is trying to change their life. some jobs find it obsolete if the crime is over 7 years. thats too much time to still hold a person accountabe. then society wonders why this person is in trouble again, its because we are not helping them.

  • Anonymous

    Background checks need to be limited to the scope of the job that the person is applying for. For example a person who is applying to work at a bank as a loan officer should be screened for convictions dealing with fraud, theft, etc. An old DUI, drug possesion, or other non-monetary misdemeanor conviction should not be considered or even revealed to the potential employer as they have no baring on that person’s risk related to that job. The same would be true for someone applying to work in a daycare center. Only convictions related to the care of children (i.e. child abuse, neglect, domestic abuse, etc.) should be screened. As running background checks on potential employees and obtaining their credit scores become cheaper and easier to do thanks to the internet, more and more companies are requiring them for an increasing number of positions. If this trend continues only those without a blemish on their criminal record (and a perfect credit score) will be able to get a good job.

  • Anonymous

    More grist for the lawyers. If employer conducts a background check, the EEOC can sue! If employer does not, the customer, client, co-worker, etc. who gets raped, robbed, attacked,….. can sue (negligent hiring)! (This comment is on my behalf, not the university’s). EW

  • Anonymous

    If you say that a legally convicted felon has “paid his debt to society,” then the further punishment of that person by not EVER being able to escape their past and redeem their future with gainful employment IS criminal. In the long run, ultimately does a disservice to society as alienating and creating a large group of disenfranchised people who are forced to do something illegal to survive.

    Next, I’d like to see someone do the same thing regarding Credit Checks. The use of a Credit History to prove worthiness to do a job is worse and more widespread. Not to mention discriminatory and lacking in logic. White collar criminals (anyone remember Enron??) have excellent credit but no moral structure. What is more likely to cause severe damage to society??? Petty thievery or a major financial scam that costs thousands of people a cumulative amount of millions??? The credit reporting companies waged a campaign to boost their bottom line. Credit checks for employment of persons (mostly making less than $60,000 yearly) is the result. I doubt very seriously if an executive of a major corporation with 4 ex-wives, numerous mortgages and children, where the job he is being considered for is in the mid to high 6 figures EVER has to worry about an in-depth background OR credit history check!!

  • Anonymous

    There is some disgusting facts about criminal background checks. Is it to keep certain minorities, out of job related jobs. I found out recently that the municipality I lived in had certain misdimeanors on me that was blocking me from employment. These charges were seventeen, eighteen years old, and were not in their computer system. If not checking on them they would have still been on my record. I understand business have to protect themselves and their workers, but it is depriving people of a job.

  • some background checkare not fair. ever if you didnot commit a crime. they are people working in places who are secrey committed crime acts and keeping they jobs. so when people apply for jobs they gie a hard time. but people who alrady work thr committ crime. and hr promote them. you should come westchester,ny

  • Anonymous

    I think making sure the resources a company uses to conduct background checks are legitimate and correct makes sense but overall, I would rather see the energy put into putting an end to financial background checks as a pre-employment condition. I can’t imagine that doesn’t affect minority communities just as profoundly as criminal background checks. Many minorities don’t have “daddy’s money” to turn to when their financial situation gets tight. One lost job is much more drastic when finding the next job becomes more difficult or nearly impossible because you slipped down that slope of financial stability.

  • Anonymous

    You know how much can this world take of trying to pull people from the bottom to the top. Just when you think you made progress you take a step back. You weren’t pulling anyone up, you were just lowering yourself down.

    Today the background check, tomorrow the Bachelors Degree, and next the High School Diploma what ever happened to set and example, and trying to be the best and hire the best.

    Wake up America. China, India, Brazil are coming up and we keep trying to come down, its not about Race like it was 40-50 years ago. Its about those who want better and those who favor mediocrity and we are telling the better to help the mediocre.

    Ill get off my soap box. :)

  • Anonymous

    “Understandably, some minority groups are overrepresented in the legal dept,”????

    Subtle enough to get past the site’s monitor(s), but I can’t seem to figure out how this was intended in a way that isn’t Anti-semetic.

  • Anonymous

    We are a few steps away from being unable to convict a minority because they are disparately impacted by the judicial system.

  • Are some of the posters on here joking? Only convictions related to the care of children (child abuse, domestic abuse, etc.) should get in the way of someone working at a day care center? So the convicted bank robber should be able to work around children because he pulled a gun on adults rather than on children, and he only stole money, which has nothing to do with the care of children?

    I am amazed at how people “reason” things through. If I owned a business, I would not want to hire someone who has been convicted of drug crimes. That could very well impact every aspect of the job, employee safety, and customer satisfaction/safety. What’s ironic to me is that the first people who support this riculous notion would be the first ones to sue if they were ever impacted by an ex-con while on the job.

  • Anonymous

    So, I get sued if I do and/or sued if I don’t.
    Anyone but me see a problem here? We have become sue happy and when things don’t go our way we SUE!

  • Anonymous

    I do agree that companys do not have a rights to violate one’s constitutional rights. Even if the applicant is an ex- felons or not. Does one wrong make it right, NO so why does it make it rights when the employer commit a wrong. Our Constitution must stand for justice for all. I know of a person (ex- felon) that had work on a job for 15 years with no problems. He quit to learn how to drive trucks. He had got hurt on the job and the company fired him. He did not sue the company but instead he reappllied at the company he had work for 15 years. At the pre-employment stage the company had run a background check and soley upon the background check the person was denied employment after working for this company 15 years. It was said that the company do not hire ex- felons or people with misdemeanors. The company do have an employee that is working for the company that has been convicted.
    This person been release since 1987. About 24 years. The court sentence he to an X amount of years and society do not have that right to continue to punish.

  • I do believe that the question upon the application about a person criminal history is a tool for companies to intentionally discriminate against people of questionable background. Some companies have voice not to hire ex- felon period because of past mistakes.
    Once an employer find out of a person criminal past the employer intentional retaliate against ex- felons in denying emploment over a conviction that may be over 10 years. The question on the application or background check is design for employers to intentionally DISCRIMINATE and retaliate to weed out the unwanted because of a person questionable past and that a crime against society. This unjust, unethical act to discrimination is to oppress ex- felons merely because of there past condition.

  • iwas hired to a company … on 02/07/2011. as of 02/17/2011 they called me out of work and told me they could not offer my employment with them any longer because of my background. now they did a sled check and they went back 19 years isnt that against the law . i feel like it was invasion of privacy. discrimination

  • Anonymous

    it’s like being punished for the same crime twice who’s to say that you are the same person you were 20 years ago

  • Anonymous

    I am married to a an ex-felon who was charged twelve years ago and served his time. He is a wonderful husband and father who would love a better job to provide more for his children so he would never have to worry about them doing anything illegal. Should he go back to being illegal since the legal ways of making money are no longer open to him because of what he did twelve years ago that did not physically hurt anybody?

  • Anonymous

    Background checks discriminate and therefore prevent many people from working.
    By preventing people from working, you prevent America from economic recovery.

    It is a fact, whether anyone wants to acknowledge it or not, Blacks, Latinos and other minorities are both arrested and convicted at significantly higher rates than any other race. It is not a matter of these people doing more crime, but of them being singled out for disparate treatment.

    Have you never heard of the “crime” DRIVING WHILE BLACK?
    How about BLACK IN THE WRONG NEIGHBORHOOD?
    HISPANIC IN TOO NICE A CAR? — All are apparently “crimes” as police officers make arrests for such everyday.

    Another problem with Background Checks is there no standardization. Background checks include any number of things – not just criminal, but civil cases – have you been sued, have you sued someone else; Have you filed an EEOC complaint, have you filed bankruptcy, how’s your credit, any IRS liens, rental checks, schools checks, neighbor checks, MIB (Medical Information Bureau)- medical checks, family member checks, and so on and so on. But how much of that is really, truly relevant to whether you can do a job?

    Also, there is no requirement that what is reported about you is true – lots of incorrect information out there. In fact, The Bureau of Justice Statistics (BJS) reports an estimated 11.7 million persons were victimized by Identity theft in 2008, so what happens to people whose identity was stolen when a background check comes up? They do not get the job.

    Finally, there is strong evidence that Back Ground Checks do not reduce work place crime. Nationally, embezzlement (stealing from an employer) cases increased by 39 percent between 1990 and 2000, according to U.S. Department of Justice statistics. But, Background Checks have increased many times that amount.

    Another interesting statistic: only a very small percentage of embezzlers are hardened criminals. A forensic accountant doing post-employment investigations reports only one individual who intended to steal when he took the job, and that person’s theft was paying his restitution in another state.

    Think, if someone wants to work, they don’t want to rob you!

    Once all this negative stuff starts to circulate, it is out there and is treated like some sort of Bible truth.
    Good luck ever getting a job and you may never have committed crime at all.

    We need to stop being afraid of each other.
    We need to stop doing Background Checks and Start the American Economic Recovery.

    • I had the unfortunate event of getting a disorderly conduct misdemeanor. The issue had to do with a cheating husband. I am 45 years old, white lady, no other convictions, educated, hard working. I cannot agree that past history is a prediction of future behavior. Now, I have a ball and chain wrapped around my foot. Colleges will not allow in, employers will not hire me,,,am I really so horrible? It seems that the idea is, ” once a criminal, always a criminal”. Is once a pattern, is a dot a polka dot? If so, and colleges and employers apparently think so, then be warned my next criminal event will be when I turn 90, so watch out!

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