Are Background Checks Discriminatory?

In two hearings held earlier this year, the Equal Opportunity Employment Commission (EEOC) heard testimony about whether or not background checks cause a disparate impact on minorities.
Advocates for ex-offenders and various watchdog groups from around the country argue that it must, because African-Americans and Latinos have higher arrest and conviction rates than whites. Although the EEOC claimed its hearings to be fair and unbiased, many critics have argued that the panelists invited to speak were strongly biased in favor of limiting background checks.
The commissioner heard testimony from defense attorneys, various academics, and two employers who had positive experiences hiring ex-offenders.
In a letter to the EEOC sent from the U.S. Commission on Civil Rights (USCCR), Commissioners Peter Kirsanow, Gail Heriot, and Todd Gaziano asserted that the hearings were not balanced and that the omission of important data was a mistake.
The commissioners said the EEOC should have heard important research from economists Harry Holzer and Stephen Rafael, as well as public-policy professor Michael Stoll. Their research, published in the Journal of Law and Economics, showed that employers with access to background checks were actually about 10% more likely to hire minorities than those without access to that information.
The commissioners wrote that the studies from Holzer, Rafael, and Stoll “suggest that, in the absence of criminal-background checks, some employers discriminate statistically against black men and/or those with weak employment records.”
The USCCR commissioners have asked the EEOC to convene another hearing specifically to look at this additional information and to consider the negative impact that limiting background checks would have on minorities.
What should employers do? The discussion in Washington and around the country will continue, hopefully in a fair and balanced way that all sides can agree with. When it concludes, it is possible that the EEOC may revise its existing guidance or simply leave it alone. That doesn’t mean that employers should just wait it out. With increased attention on this matter and a surge in lawsuits claiming discrimination, now is the time for employers to look carefully at their policies and procedures regarding background checks.
Employers should always ensure that hiring decisions are made consistently. When negative information returned on a background check is considered, employers should be careful to weigh the job-relatedness of the crime and the amount of time passed since the completion of the sentence.
Some employers also look to consider additional factors such as any positive work experience since the sentence, references, or civic activity.
The Employers Association of the NorthEast (EANE) will be hosting a Webinar about this topic on Nov. 30 from 12:30 to 2 p.m.  Employers interested in attending can register by visiting www2.gotomeeting.com/register/531504930.

John McTighe is vice president of Strategic Information Resources, a background-screening company based in Springfield; (800) 813-4381; [email protected]

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