Employers’ Use of Criminal Background Checks: Discrimination, Inequality and Chapstick

The criminal justice system in the United States is an unqualified disaster — the most recent Bureau of Justice Statistics report (pdf) gives black men a one in three chance of ending up in prison at some point in their lives — compared to about a 5% chance for white men. So we’re already missing an astounding number of black men from the labor pool by the sheer fact that they’re locked up.

But it doesn’t get much better when they get out. We’ve already discussed how identical job applicants with “black” sounding names are much less likely to get called for a job interview. Add in a conviction record, and suddenly a black candidate’s chances of being called for an interview drop to about 5%. (Does it get worse? Of course it does — a black applicant with no conviction record is still less likely to get a job interview than a white applicant with a conviction record.) That 5% statistic was in 2003 — think how much worse a black ex-con’s chances are now, with the unemployment rate climbing astronomically.

The Equal Employment Opportunity Commission (EEOC) recently issued a new guidance on the use of criminal background checks to screen current or potential employees. Though I applaud the EEOC for taking on a tough issue, and taking a serious look at it, the whole topic raises mixed feelings for me.

I appreciate that a federal government agency is going out of its way to recognize that arrest records (as opposed to conviction records) are not indicative of any wrongdoing. If you use arrest records to screen out candidates, and that ends up screening out most blacks, the EEOC says it’s discrimination. Employers are allowed to use neutral employment practices that disproportionately hurt one group of people only if they are “consistent with business necessity” and “job related.” Here, the EEOC is saying that the use of arrest records serves no purpose, since it doesn’t tell you anything about the person except that they were once suspected of something by someone. Sadly, these kinds of cases (“disparate impact”) are notoriously hard to bring (I’ll rant about this later). But here’s hoping the EEOC is deterring employers from using arrest records anyway.

It’s also heartening that a federal government agency recognizes that using criminal background checks or arrest records to screen employees very well might result in discrimination, and not just because blacks are vastly more likely to have such a record. The EEOC also recognizes that employers might well view blacks and whites with the same record differently. The EEOC illustrates its point with a hypothetical about a black and white candidate who both have a drug conviction. The hypothetical has the employer imagining the black ex-con as a drug dealer, and the white ex-con as someone with a youthful indiscretion. It’s a great example that  illustrates the issue well.

So why the mixed feelings? Firstly, of course, I wish the federal government would go further. When I was in law school, New Haven passed the “Ban the Box” initiative, which prevents public agencies from asking applicants about their criminal records at all until they’ve already been deemed qualified for the job (that is, no more “box” to check on application forms). Then, if a background check does reveal something potentially disturbing, the employee has a chance to defend himself, explaining what happened and why it has no bearing on his ability to do the job. Given, New Haven is relatively small, and the initiative only applies to public agencies, but it’s part of a larger movement (pdf) that’s promising.

Secondly, the EEOC guidance just isn’t anything new. The EEOC says that using arrest records isn’t necessary, but it doesn’t say it’s illegal. Frankly, it should be. I see no purpose in allowing anyone to access anyone else’s arrest records.Think of an arrest that doesn’t result in conviction as a false-positive on a lab test. It doesn’t mean that the person did or didn’t do anything, or has or doesn’t have a disease. It doesn’t mean anything except that a petri dish turned green, or that a cop found someone suspicious.

Finally, it just seems like a very small drop in an ocean of suffering and inequality. When such an enormous proportion of the black population is sitting in prison, when virtually none of them will find a job when they’re released, and when even those who don’t end up in prison have an unacceptably low likelihood of landing a job, cautioning employers that criminal background checks might be discriminatory just feels a little like soothing a torture victim with chapstick.

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