“An employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended,” the EEOC states.
In plainer terms, checking a job seeker's criminal record could be deemed a racist act, since statistically, more minorities are arrested (and convicted and incarcerated) at a higher rate than whites.
“Arrest and incarceration rates are particularly high for African American and Hispanic men,” the EEOC notes. “African Americans and Hispanics are arrested at a rate that is two to three times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 white men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.”
Employers might think that a race-neutral policy shields them from accusations of race-based hiring practices. It doesn't, the EEOC makes clear.
In other words, using criminal background checks to screen employees and help make hiring decisions is unlawful, if a rejected worker can claim such a policy has a “disparate impact” on his or her racial group.
And that's already assumed by the EEOC.
“National data . . . supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” it says.
To be sure, the EEOC does say criminal background checks are still legal, and hiring decisions for some positions can take the results of such a check into account. But the burden of proof is on the employer to show a “business necessity.”
“Executives of Pepsi Beverages know all about the background-check crackdown,” notes Diane Katz of the Heritage Foundation. “The company is on the hook for $3.13 million for a former policy under which applicants who had been arrested pending prosecution were not hired for permanent jobs. Well, duh.
Most anyone outside of government would understand the issues related to hiring an employee who is about to be embroiled in a trial and who could soon end up behind bars — or who might be a repeat offender.”
A full 93 percent of employers run criminal background checks for at least some of the jobs they provide. Nearly three-fourths run background checks on all new hires.
They do so for a reason.
“The EEOC, and the courts, may no longer accept the seemingly obvious rationalization that applicants with theft convictions are more likely to steal,” employment attorney Rich Meneghello wrote for the Oregon Daily Journal of Commerce recently.
The EEOC guidelines are typical of the bureaucratic solution to a perceived problem. They should instead start by asking whether there's really a problem at all.