The US Equal Employment Opportunity Commission has begun to track charges of discriminatory hiring on the basis of arrest and conviction records.
While people with a criminal history are not a protected class under the 1964 Civil Rights Act enforced by the agency, it said in 2012 guidance that the law prohibits employers from treating job applicants with similar criminal histories differently, based on race or other protected characteristics.
And the EEOC has said the law prohibits exclusion of people based on their records unless the move is “job related and consistent with business necessity,” because of the disparate impact such a move would have on members of groups that are arrested and convicted more than others.
The agency’s newest category of charges, created in 2014, is a sign of the times. The pervasiveness of criminal background checks involving information that is available online but sometimes inaccurate or difficult to interpret, along with an exponential increase in the arrests and convictions of black and Hispanic men, has made finding and keeping jobs for these groups that much harder.
Their increased contact with the criminal justice system comes amid a general escalation in arrests and convictions in the US during this century. The DOJ’s statistical department said in 2009 that if incarceration rates don’t decrease, some 6.6 percent of all persons born in the US in 2001 will serve time in state or federal prisons—compared to 1.8 percent of the adult population in 1991.
And black and Hispanic men are arrested at two to three times the rate of the general population, according to the FBI.
“It’s a social justice issue,” said Christopher McNerney, an associate with Outten & Golden, which represents plaintiffs in discrimination charges on the basis of criminal history. “The people disproportionately affected are those of color.”
It’s also an exposure for employers, who must sometimes walk the fine line between negligent hiring and potential liability in the eyes of the EEOC on their use of background checks.
While Title VII doesn’t prohibit checks or consideration of past offenses, the federal agency says it does oblige employers to weigh factors such as the nature of the offense, how long ago it occurred and its relevance to the job in question.
Also governing the use of background checks is the Fair Credit Reporting Act, which applies to criminal as well as credit records.
The FCRA stipulates how employers must disclose and seek permission for background checks from applicants and employees. It also specifies how employers who plan to take “adverse action” must notify subjects beforehand, to allow for individual review, as well as afterward.
Littler Mendelson said in an August 2014 report that, based on its own litigation experience, class action filings alleging non-compliance with the FCRA had roughly tripled from 2013 and “greatly exceeded” the number of filings prior to that year.
Jennifer Mora, a shareholder in the defense firm, advises employers and consumer reporting agencies “on the intersection of Title VII and the FCRA and state law equivalents.”
She told Advisen that employers should consider only convictions–not arrests–in evaluating criminal backgrounds and engage in individual reviews of applicants whose records have prompted adverse action. They should not ask about criminal history on an employment application.
Mora said she audits, “under the cloak of attorney-client privilege,” the criminal background-screening programs at companies, to determine if they are defensible against investigations under TVII or FCRA.
“Companies are asking, ‘are we at risk?’” Mora told Advisen. “One discrimination charge in Arizona may open the door to a nationwide investigation” of a company’s hiring process by the EEOC.
Evaluations can involve designing as narrow a screening process as possible, based on the duties of the job, or recording personnel decisions so that, “if necessary, the employer can establish that the reason an applicant was rejected was because of a poor interview, … etc.,” the firm said in the August report on FCRA class actions.
Third-party background checks, as a rule, are made after an applicant receives an employment offer, said Jamie Murdock, chief information security officer at data-security company Binary Defense Systems. He sometimes works with companies that perform background checks.
Murdock believes third-party companies, to which the FCRA applies, are better equipped to penetrate the inaccuracies and opacity of online data than employers who perform their own searches, often at an earlier stage in the hiring process.
“As a private individual, I can gather all the information I want and use it any way I want,” he told Advisen. “A third party will look into its validity.”
Even an experienced third party will be stumped by discrepancies arising in cases such as identity theft. But Murdock said they can also help deflect liability from the employer for a screening program by providing more contextual information on which to base their hiring decision.
