Are background checks discriminatory?

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GloriaInTX's picture
Joined: 07/29/08
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Are background checks discriminatory?

Is it discriminatory to do a background check and exclude someone because of their criminal history because minorites are convicted of crimes at a higher rate than whites?

On Jan. 29, 2013, OFCCP issued Directive 306, notifying federal contractors and subcontractors that use of criminal background checks to screen applicants for open positions may violate Title VII. OFCCP noted that because racial and ethnic minorities are arrested and convicted at a higher rate than whites, excluding job seekers based upon their criminal history may be discriminatory.

OFCCP indicated its intent to follow the EEOC?s Enforcement Guidance on the use of arrest and conviction records issued on April 25, 2012. In that Guidance, EEOC noted that use of criminal background checks can lead to: (1) disparate treatment (e.g., intentionally treating a white job applicant with a criminal conviction differently than a minority job applicant); or (2) disparate impact (e.g., a neutral policy of excluding job applicants with criminal histories, but such policy disproportionately screens out certain racial or ethnic groups). To avoid claims of disparate impact, an employer?s policy or practice of excluding applicants based upon criminal history must be job-related and consistent with business necessity.

OFCCP stated it is aware of contractors posting job announcements that categorically exclude applicants with arrest or conviction records or require applicants to have a ?clean? criminal record. OFCCP believes these practices likely violate federal discrimination laws.

Also of note, OFCCP follows EEOC?s recommendation that employers not ask about criminal convictions on job applications. Further, OFCCP suggests that if an employer asks about an individual?s criminal history at any point during the application process, the employer limit the inquiry to convictions that are related to the job in question and are consistent with business necessity.

Current OFCCP M.O. is to seek broad employment-related information as part of every audit, including seeking information about maternity leaves, religious accommodations, treatment of individuals with disabilities and veterans, as well as many other employment practices. Will OFCCP now add to its audit checklist information about the contractor?s use of criminal background checks?

OFCCP to focus on criminal background checks - Lexology

These federal agencies reason that the use of criminal background checks can lead to a disparate impact on minority job applicants. According to these government agencies, in order for an employer to avoid claims that using a criminal background check is discriminatory, they must show that excluding applicants based upon criminal history is job-related and consistent with business necessity.

And the EEOC for its part is threatening lawsuits against companies which employ background checks.

http://netrightdaily.com/2013/02/background-checks-deemed-discriminatory-by-obama-administration-agencies/

Sapphire Sunsets's picture
Joined: 05/19/02
Posts: 672

"GloriaInTX" wrote:

Is it discriminatory to do a background check and exclude someone because of their criminal history because minorites are convicted of crimes at a higher rate than whites?

No.

Most jobs that do require background checks are either dealing with money, narcotics, and kids/elderly. Why would any employer in there right mind hire someone who has a criminal background especially if they are going to be responsible for any of the listed above? Thats just plain stupid, thats asking someone to steal or harm.

ftmom's picture
Joined: 09/04/06
Posts: 1538

Absolutly not. There are a lot of reasons minorities are convicted of crimes at a higher rate. Its not like they are being falsely convicted and didn't commit a crime. This just makes no sense to me.

Joined: 08/17/04
Posts: 2226

I don't think it is discrimination. If a job requires a background check any eligible applicant is subject to it. Don't commit a crime if you don't want it to be found out Wink

GloriaInTX's picture
Joined: 07/29/08
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I had to read it a couple of times to actually believe that is what it really says. I think it is ridiculous. Our Federal Government at work proving how stupid they can be. When you think about it what Business wouldn't have a necessity to hire someone without a criminal background? Even laborers and construction workers are using expensive tools that could be stolen if you hire a thief. Any company that wants to do a background check should be able to. They may choose to hire someone with a criminal background anyway but at least they should know what they are getting into.

ClairesMommy's picture
Joined: 08/15/06
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Only criminals would have a reason to pull the discrimination card, not people, regardless of colour of skin, who have nothing to hide.

ftmom's picture
Joined: 09/04/06
Posts: 1538

I do believe that minorities get convicted of crimes at a higher rate than whites, perhaps even unfairly. However, I would say that is the problem they need to address, not the fact that companies are using background checks. This just seems so backwards to me.

GloriaInTX's picture
Joined: 07/29/08
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Saw this today and it made me laugh so I thought I'd share.

Joined: 05/31/06
Posts: 4780

In reading it doesn't appear that the problem is them vetting out CONVICTED criminals, but that the background checks were automatically disqualifying people who had been arrested but not convicted. And yes, I can see that being a race related thing. And yes, I would be outraged if I was kept out of job after job because the wrong person got arrested one day, and I happened to be the unlucky guy, though I was innocent. They just won over 3 Mil in a lawsuit from Pepsi, so of course it makes sense to be covering their own butts on this, if they are dinging other companies for discriminatory hiring practices.

Pepsi's EEOC violation isn't just about discrimination - CBS News Interesting perspective.

Sapphire Sunsets's picture
Joined: 05/19/02
Posts: 672

"Potter75" wrote:

In reading it doesn't appear that the problem is them vetting out CONVICTED criminals, but that the background checks were automatically disqualifying people who had been arrested but not convicted. And yes, I can see that being a race related thing. And yes, I would be outraged if I was kept out of job after job because the wrong person got arrested one day, and I happened to be the unlucky guy, though I was innocent. They just won over 3 Mil in a lawsuit from Pepsi, so of course it makes sense to be covering their own butts on this, if they are dinging other companies for discriminatory hiring practices.

Pepsi's EEOC violation isn't just about discrimination - CBS News Interesting perspective.

If it was a race related thing they wouldn't even have gotten to the point of doing the background check on the person. Every place that has ever done a background check on me for a job interviewed me first. Background checks cost companys money, last time i checked they usually don't like to spend money doing a background check on someone they wouldn't hire anyways.

Joined: 05/31/06
Posts: 4780

"Sapphire Sunsets" wrote:

If it was a race related thing they wouldn't even have gotten to the point of doing the background check on the person. Every place that has ever done a background check on me for a job interviewed me first. Background checks cost companys money, last time i checked they usually don't like to spend money doing a background check on someone they wouldn't hire anyways.

Well, you may say that, but without knowing all the details of the case I'm wondering how you can say so confidently that you disagree with the courts ruling? This is about people being denied jobs based on charges that they were not found guilty of that come up on background checks. You would be compliant with not getting a job that a company was poised to give you because the police messed up? I wouldn't. that would seriously mess with my ability to support my family, and that doesn't seem fair to me.

As to your bolded, I totally disagree. If that was true why on earth would they do the background check? As you stated it costs money.

ftmom's picture
Joined: 09/04/06
Posts: 1538

I still dont get how it is a race thing. If they are eliminating anyone who has been arrested, that would be white people too, right?

Joined: 03/08/03
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I get why it's a race thing in that minorities are more likely to be arrested for a crime they didn't commit, only because they are, in some areas, automatically under suspicion due to their skin color.

That said, this is the wrong end of the equation to be making changes in. The problem is at the root; you don't solve it by not allowing companies to check on potential employees. I've had to do a background check for every job I've had in the past few decades.

Sapphire Sunsets's picture
Joined: 05/19/02
Posts: 672

"Potter75" wrote:

Well, you may say that, but without knowing all the details of the case I'm wondering how you can say so confidently that you disagree with the courts ruling? This is about people being denied jobs based on charges that they were not found guilty of that come up on background checks. You would be compliant with not getting a job that a company was poised to give you because the police messed up? I wouldn't. that would seriously mess with my ability to support my family, and that doesn't seem fair to me.

As to your bolded, I totally disagree. If that was true why on earth would they do the background check? As you stated it costs money.

First bolded: If you were an employer hiring someone who was going to be reponsible for handling ALOT of money in your business and you did a background check on them and it came up that they were arrested for stealing or robbery, you would really still consider them a candidate?? It tells you nothing why they were found not guilty. They could very well have been guilty but there wasn't enough evidence to convict. Your really going to put your business that you have poured sweat, heart and money into at risk? Ya, have fun with that.

Second bolded: That was my point. It it was a race discrimation thing why would they do a background check if they aren't going to hire the person anyways?

Joined: 05/31/06
Posts: 4780

Its a race thing in that blacks are way more statistically likely to be arrested for or found guilty of a crime they didn't commit, or unjustly pulled over/searched due to racial profiling. Though I tend to agree with Laurie, I get what this law is trying to accomplish. This idea of "all CRIMINALS" don't deserve a job is only going to keep people (often innocent ones) further in poverty or lead to them resorting to actual/more crimes if they don't have viable work options. Its hard to argue that that is good for society.

North Carolina Racial Justice Act | American Civil Liberties Union

In 2011, NYPD Made More Stops Of Young Black Men Than The Total Number Of Young Black Men In New York | ThinkProgress
I can tell you that near me at the 25K/year private high schools filled with white kids kids are NOT arrested for things like writing on desks. Is it fair for someone to have an arrest record that would prohibit them for getting a job because they went to an inner city school where the police are more likely to be called than some richy rich friends school in the suburbs? http://www.nyclu.org/news/new-nypd-data-show-black-students-disproportionately-arrested-school

I see the point.

Joined: 04/12/03
Posts: 1686

"Sapphire Sunsets" wrote:

First bolded: If you were an employer hiring someone who was going to be reponsible for handling ALOT of money in your business and you did a background check on them and it came up that they were arrested for stealing or robbery, you would really still consider them a candidate?? It tells you nothing why they were found not guilty. They could very well have been guilty but there wasn't enough evidence to convict. Your really going to put your business that you have poured sweat, heart and money into at risk? Ya, have fun with that.

Second bolded: That was my point. It it was a race discrimation thing why would they do a background check if they aren't going to hire the person anyways?

Arrested and found not guilty are two totally different things. I was almost arrested once at a traffic stop. He ended up not arresting me because he and both knew he couldn't for what he thought I was doing wrong. I also got out of the traffic ticket because he didn't do his job (thus being able to show I wasn't speeding).

I had jury duty 6 months ago and all of us on the jury couldn't believe it went to trial. There was no evidence or really even probable cause to believe he was a part of any of it.

There was a case on Judge Judy a while back. A college student was assigned a roommate. The roommate stole his ID. Later the roommate stole a car and left the stolen ID in the car. The young man whose ID it was was arrested and spent a night in jail. In no way was he guilty of anything. And once it was investigated, all charges were dropped. But under your theory, a company should never be able to trust him to drive a company car.

The background check isn't always done at a set point of the interview. Just like credit checks can be used to weed out applicants up front, a background check at the beginning of the process can be used to filter out those who the company won't even call for the interview.

Joined: 05/31/06
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"Sapphire Sunsets" wrote:

First bolded: If you were an employer hiring someone who was going to be reponsible for handling ALOT of money in your business and you did a background check on them and it came up that they were arrested for stealing or robbery, you would really still consider them a candidate?? It tells you nothing why they were found not guilty. They could very well have been guilty but there wasn't enough evidence to convict. Your really going to put your business that you have poured sweat, heart and money into at risk? Ya, have fun with that. Second bolded: That was my point. It it was a race discrimation thing why would they do a background check if they aren't going to hire the person anyways?

Have you read the links provided? This is specifically addressed. So before you get all flip and "have fun with that" why don't you educate yourself about the actual debate matter. No one is advocating that someone convicted of, say, embezzlement be entrusted with financial record keeping. I would, however, hire a criminal to take care of the handling of my alot. Thats easy.

Employers should instead utilize a targeted screening process that takes into consideration the nature of the crime, the time elapsed since the conviction, and the nature of the job held or sought. The EEOC further recommends that employers study recidivism data to determine whether a particular conviction should be considered, rather than rely only on generalized concerns. By way of example, the Guidance states that a 15-year-old misdemeanor conviction for misrepresenting income on a loan application likely would not be sufficient grounds to disqualify an applicant from a customer service job at a bank, unless the employer can demonstrate that there is an increased likelihood for that person, who has been crime-free for more than 10 years, to commit a financial crime.

Your second point shows that you still don't understand the debate. It isn't about employers being racist and intentionally setting out to not hire people of a certain color.

The Guidance builds on the EEOC's long-held position that, although Title VII does not protect individuals with criminal records as a class, an employer's reliance on arrest and conviction records in deciding whether to hire or retain employees may result in illegal discrimination based on race and national origin.

I don't agree with this method of encouraging companies to hire people with issues on their background check as I think that the guidelines are really cumbersome ~ I also don't think that its as simple of an issue as saying "our government is SO STUPID" or, "hey don't be a criminal if you don't want a bad background check". I can see that there is or could be a valid issue here, but I don't necessarily agree that these new guidelines are the best way to fix it.

Alissa_Sal's picture
Joined: 06/29/06
Posts: 6427

Now that we've discovered that the background check also turns up things that you weren't actually found guilty of, I think it's a lot more ludicrous.

Having said that, I also dislike the attitude of "if you've ever been a criminal, you should just expect that no one will ever hire you again." Seems like the most efficient way to keep people criminals, IMO. Making a mistake in your past doesn't mean that suddenly you don't need an income any more, so if you can't make it legally, what are the odds that you'll make it illegally? I'm not saying, for example, finance companies should be required to hire someone who went to jail for embezzlement, but a company could hire him to work on my lawn or bag my groceries, or whatever. Just saying, there are some jobs where background checks make more sense, but I don't think it should be the rule for all employment everywhere that no criminal is ever hired again. That seems like a recipe for more crime, not less.

AlyssaEimers's picture
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"Alissa_Sal" wrote:

Now that we've discovered that the background check also turns up things that you weren't actually found guilty of, I think it's a lot more ludicrous.

Having said that, I also dislike the attitude of "if you've ever been a criminal, you should just expect that no one will ever hire you again." Seems like the most efficient way to keep people criminals, IMO. Making a mistake in your past doesn't mean that suddenly you don't need an income any more, so if you can't make it legally, what are the odds that you'll make it illegally? I'm not saying, for example, finance companies should be required to hire someone who went to jail for embezzlement, but a company could hire him to work on my lawn or bag my groceries, or whatever. Just saying, there are some jobs where background checks make more sense, but I don't think it should be the rule for all employment everywhere that no criminal is ever hired again. That seems like a recipe for more crime, not less.

If you were a business owner and wanted to take a gamble on a criminal, that would be your choice. Businesses should not be forced into hiring criminals though.

Alissa_Sal's picture
Joined: 06/29/06
Posts: 6427

I wasn't really talking about "forcing" business owners to hire ex-cons. I'm just saying in general, I don't think the "well if you ever want to work again, don't be a criminal" attitude seems kind of harmful to society, assuming we want to actually rehabilitate criminals.