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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:

  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.

60 Comments

  • Anonymous

    It is easy for people to say AMEN. But are they willing to help a man or woman. Don’t look at what happened but where that person is going. IF you see someone trying to live a productive life instead of a destructive one, that’s a good thing. Don’t judge a book by it’s cover untill you have read the pages. If some one is asking for a hand up ,and not and hand out there is a difference. Some people do grow up and change. Ho long does some one have to pay for thier mistakes. This is a sad unforgiving society. MAY GOD HELP US ALL!

  • Anonymous

    BACKGROUND CHECKS ARE USED AS TOOL FOR RETALIATION over an applicant past conditions committed upon society. The employer would claim that this tool of background checks would be useful to see what might happen before it happen. Trying to weed out crime Or ex-felons is like tring to tell the future of what you think matter happen because you have hired an ex-felon. An employer can hire a person with no criminal histroy but history has shown use that criminal behavior start with ordinary people. The use of an background check to solely to deny employment discriminate for no justified reason other then that of retaliation.

    In denying emloyment to ex-felon is retaliation and discriminate against ex-felons.
    It maybe unprecedented in a court of law but it is truly an act of aggression and revenge for an act committed upon society to deny an ex- felon or anyone with a criminal past the equal opportunity for employment as all others of a free society.
    Companies has adopted such policy that would discriminate, persecute ex-felons unfairly in there hiring practice, and unlawfully punish.
    Companies claim to be an EQUAL OPPORTUNITY EMPLOYER is not true. Companies advertises such policies as being an Equal Employment Opportunity Workplace or employer rings out it true meaning of equal treatment for all and not a select group. EQUAL EMPLOYMENT OPPORTUNITY is to be part of an Anti Discrimination Policy, which should keep the employer neutral at his or her professional level and not discriminate.

  • Anonymous

    I did many silly immature things in my 20s by digging into alcohol, drugs, and petty theft. Today at 39, I have not stole anything decade and a half. I got out of drugs a good while back and no longer have to worry about a drug test. The biggie comes in 2005 when I was convicted of simple battery; Yes, a violent crime. I’m sorry for it all, did my time, paid my fines, and completed the work hours.

    I took a good look at my past, decided to change my attitude, and made every effort plausible to do so. I give up on the bad influences, enrolled in classes in 2007, and still going to school with graduation plans for 2012. I am currently trying to find a summer job to help me out. In the job seeking process I have not found one employer outside of hard labor and roof construction that does not require a Background Check along with a Drug Screen. It is just the norm these days, I suppose. My biggest concern is that I will graduate school and not be able to find employment because of my past.
    I feel that a background check is a way to legally discriminate. It is no better for me as a white male to have a violent conviction than a Black or Latino. I just wonder if my past will haunt me in my search for a better and more productive life. I am about to be fingerprinted for a Background Check and just curious to know what the future is going to bring to a person trying to improve on the unchanging past.

  • Arrest records that lead to dismissal or not- guilty should NOT be accessible in a record check!! Last time I checked, a person is innocent until proven otherwise!! Why should that person be discriminated against in a potential job interview????

  • Anonymous

    I believe that background checks are retaliation and discriminatory. In my case I had work for this company for 15 yrs work the company ever know of my criminal back ground. I had quit to learn how to drive trucks. I had got injured on the other job and I decided to return to my old employer. On the application I had put that I had been convicted over 20 +yrs ago. I was promoted from driver to dispatcher and supervisor with in 2yrs of being with the company.
    When I reapplied ,the company ran a background check and I was deny employment.
    I feel the company retaliate when they ran a background check when the company knew as being a good and reliable worker. I gave then no reason over the years not to rehire me. So the use of the background check was clearly retaliatory because I have a criminal background over 20 +yrs ago which lead the company to discriminate against me in denying me employment. for reasons not related to the job.

  • Anonymous

    I believe that background checks are retaliation and a discriminatory tool for unethical business practice. In my case I had work for this company for 15 yrs . The company did not know of my criminal back ground at that time. Over the 15 yrs I had establish a relationship with in the company which also establish trust for a promotion from a driver to dispatcher and supervisor in about a 2 yr period. I decided to quit after 15yrs to learn how to drive trucks to make more money. After working nearly 2 yrs with another company I had an on the job injury. This cause me to reapply for my old job only to be denied employment because of a 20+ yrs old conviction.
    At this point I feel the company used the background check as a tool to retaliate for a crime against society. The company decision to discriminate was based solely upon prejudice because I gave the company no ill reason over the 15 yrs not to rehire me as they have rehired other in the past.

  • I was convicted of selling marijuana when I was barley 18. I must say that at 18 you do not realize how the decisions you make will affect you in the future. I am now 30 years old and have worked for my company for 10 years. I was up for a promotion at the location that I was working, when the company that we were contracted to started running background checks on contractors. They deamed me a high risk employee for my conviction even though my work history was impeccable and I have taken many random drug screens since my employment. I was banned from the premises. I am very fortunate to have a good history with my company and have been moved to another location maintaining employement. However, management postions don’t come available very often, and I may not have another opportunity for many years to progress within my company because of this. My immediate supervisor stands behind me as well as our regional management and HR team; however, it doesn’t matter because our customer has banned me from their premises for a 12 year old felony. People are discriminated against everyday for a mistake that may be very distant in their past. How can someone be expected to become a productive member of society if they cannot be reintegrated after they finish their punishment? At a minimum there should be a statue of limitations on any non-violent offender regaurding background screens along with age considerations as well. It would also make sense to break offenses down into categorys that would link the crime to the job in question(so pedophiles could not work around children, fraudulent behavior could not work in finance, etc.). But, people should still be given a chance to move forword and prove that they can be productive members of society rather than a permanent underclass citizen for a mistake they may have made in the past.

  • Anonymous

    Why are arrest(s) that never lead to conviction EVER considered or accessible for that matter? If if I remember correctly, we are innocent when accused until proven otherwise?

  • christine

    There are a great deal of comments on here that almost have me convinced that employers shouldn’t perform background checks. Let’s not forget that all individuals who comment misdemeanors and felonies had an idea prior to the conviction of the recourse for their actions. Fair is not always kind, period. If an individual chooses to commit a crime then the aftermath of living normal will always be sketchy. I have a bump in my record, I’d prefer not to discuss on here and have paid a price for acting foolish. Each time I apply for a job I know that I can be turned away because of my foolish actions. Think about the basics, “Crime does not pay” and there are several sensitive jobs that won’t hire if your record is flawed. The best lesson for the future generation, stay clean and away from deviant behavior, finish high school, go to college and stay focused.

  • Buttered Biscuit

    This is creeping liberalism. The new strategy is to create as many precedents as possible so it ‘just seems logical’ to overturn decisions like Richardson v. Ramirez because ‘times have changed.’

    • Luke Visconti

      “Creeping liberalism?” I haven’t listened to Limbaugh in a while—is that one of his phrases? What would “creeping conservatism” be? Foot tapping in the men’s room (maybe that’s creepy conservatism)? Talking about controlling a woman’s body after a rape pregnancy? Spending trillions of dollars you don’t have to invade counties? I’m not sure what “creeping liberalism” is, but count me in if it means advancing civil and human rights. In this case, can we get some people folded back into society after they’ve done wrong? I can’t source this quote, but I read that Mark Twain said, “Christianity is a great religion; we should try it some day.” Luke Visconti, CEO, DiversityInc

  • Background checks do discriminate. There are sold studies that show a person who has a record from ten years ago is no more likely to get into trouble or break the law then anyone else. Not to mention a person with a record can be bonded by the government to give the company more peace of mind, because it limits there liability.

  • Kirt Coffin

    I am a white middle aged male. I personally believe that criminal background checks should be illegal. Once an individual has completed their debt to society the conviction should not be able to be used against them. the only institutions that should have access to that information is law enforcement agencies to be able to declare one as a habitual violator. It is no surprise that people with a conviction end up re-violating.

  • Anonymous

    Back ground checks hurt society because people who have made mistakes in their past are really never forgiven. They are refused decent employment for the rest of their lives.(condemned). Even minor crimes keep you out off the work force. This forces them to survive anyway they can by robbery, drug dealing, stealing or what ever it takes for a desperate person to survive. If you served the time it should be unlawful to keep them from working. There are more crimes with more devastating affects done by big business and Government officials that never suffer the consequences for their actions, yet the little guy that cannot afford some fancy Lawyer suffers for the rest of his life. IT IS DISCRIMINATION.

  • What I dont understand is our government lets everyone able to walk or run cross our borders but someone that has paid their debt to society and take care of their family is EXCLUDED for GAINFUL EMPLOYMENT. Now thats true America. Most people that bring violence into the work place have never been convicted of anything…most bank robbers have never been convicted so, to say thos is to screen for safety is some Racist cover up.

  • There really needs to be a timeline to how far back employers can go for background checks they are really not fair when you can’t get a job 15 yrs with a clean record cause of an err in judgement.

  • I have been working for the same company for 2 years, my boss asked me today to submit to a background check stating that the 7 year check wasn’t good enough. I told her I had been in trouble over 20yrs ago and she ask me for what? Mind you the company only requires a 7 year check. I do think I am being decriminated against because no other employee has had this happen to them, even employees who have worked for the company for over five years. I feel like im going to get fired for something I did over 20 years ago???

    • Luke Visconti

      Unless you’re working with the Ebola virus or plutonium, a 20-year background check is very, very suspicious. I’d be concerned it’s racially oriented. Luke Visconti, CEO, DiversityInc

  • Anonymous

    I live in FL. I have NO felony convictions, but I do have several arrests, most of which ended up with charges being dropped. I have been working for 2 years at a company that did NOT do a background check. My work is impeccable, but I”m not making anywhere near what I should be. I have qualified for and been told I HAD THE JOB three times for better positions, but once they run my background check, I’m told that they are rescinding the job offer. This is ridiculous. This was years ago when I got in trouble and have had no incidents since. At what point does this access to personal information become a total invasion of privacy?? There was a time that you got a job based on your ability and competency to do that job. Not on what happened 6 or 7 years ago. It borders on the obscene. They tell you to change your life and do the right thing, but they don’t tell you that you will be crucified for the rest of your life for mistakes you made a decade or more ago. No wonder criminals revert to old behavior. And the future victims can in part blame the sanctimonious, self-righteous background checkers.

  • I dont understand this, im really trying to get a job and have some stability in my life for my kids. But my background holds me back. And these jobs i apply for are completely unrelated to my criminal history, that is why i dont believe it when ppl tell me it depends on my charges, cuz either way i get same answer. Im Hispanic female, i sincerely feel this background check crap was designed to keep ppl like me in a label. This is really depressing and i clean homes for extra cash and im going to school im just scared i will be stuck with a student loan and no way to pay it off!

  • I’m sick of hearing how society discriminates against the blacks and mexicans. I am white, and I have a felony and I am discriminated against in the workforce ALL the time. It is ridiculous that these “office managers” can control my life and paycheck. If they are going to invade my privacy they better make damn sure that my conviction has anything to do with my position or I am going to sue. Just because they are rich, doesn’t give them the right to treat people like dirt. I did the crime, and I did the time. These employers need to be prosecuted because the constitution says that “I can not be punished for the same crime twice”, and why do the employers think they have a right to punish me over and over and over. I wonder how they will feel when their sons or daughters get caught in the wrong place at the wrong time. I bet it will be a completely different story then, or they will pay their way out of it. Some of us don’t have that option.

    • Luke Visconti

      Oh, so you wipe your feet on “Blacks and Mexicans”? Maybe your problems extend a little further than your past felony. Just saying. Luke Visconti, CEO, DiversityInc

      • I’m sorry, but why is it that if I’m white I can be discriminated against by employer for conviction that has nothing to do with job, but if I am black or mexican I would have a huge case against them. I would call this discrimination. I need a job just like everyone else. It’s not my fault they get caught more, maybe they need to stop hanging out in “gangs” and that wouldn’t be a problem.

  • Orville Grant

    I recently just got hired at FIS through an agency and after they saw that I have a record they decided that they wont continue with me. Mind you I am not a criminal,it was just a mistake that I have made. I am a good person, and I would never conform to the way they saw me. I have an obligation to be good for the rest of my life.

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