U.S. Puts Limits On Employee Background Checks To Protect Minorities

By Sam Hananel

WASHINGTON -- Is an arrest in a barroom brawl 20 years ago a job disqualifier? Not necessarily, the government said Wednesday in new guidelines on how employers can avoid running afoul of laws prohibiting job discrimination.

The Equal Employment Opportunity Commission's updated policy on criminal background checks is part of an effort to rein in practices that can limit job opportunities for minorities that have higher arrest and conviction rates than whites.

"The ability of African-Americans and Hispanics to gain employment after prison is one of the paramount civil justice issues of our time," said Stuart Ishimaru, one of three Democrats on the five-member commission.

But some employers say the new policy -- approved in a 4-1 vote -- could make it more cumbersome and expensive to conduct background checks. Companies see the checks as a way to keep workers and customers safe, weed out unsavory workers and prevent negligent hiring claims.

The new standard urges employers to give applicants a chance to explain a report of past criminal misconduct before they are rejected outright. An applicant might say the report is inaccurate or point out that the conviction was expunged. It may be completely unrelated to the job, or an ex-con may show he's been fully rehabilitated.

The EEOC also recommends that employers stop asking about past convictions on job applications. And it says an arrest without a conviction is not generally an acceptable reason to deny employment.

While the guidance does not have the force of regulations, it sets a higher bar in explaining how businesses can avoid violating the law.

"It's going to be much more burdensome," said Pamela Devata, a Chicago employment lawyer who has represented companies trying to comply with EEOC's requirements. "Logistically, it's going to be very difficult for employers who have a large amount of attrition to have an individual discussion with each and every applicant."

The guidelines are the first attempt since 1990 to update the commission's policy on criminal background checks. Current standards already require employers to consider the age and seriousness of an applicant's conviction and its relationship to specific job openings. And it is generally illegal for employers to have a blanket ban based on criminal history.

But the frequency of background checks has exploded over the past decade with the growth of online databases and dozens of search companies offering low-cost records searches.

About 73 percent of employers conduct criminal background checks on all job candidates, according to a 2010 survey by the Society for Human Resource Management. Another 19 percent of employers do so only for selected job candidates.

That data often can be inaccurate or incomplete, according to a report this month from the National Consumer Law Center. EEOC commissioners said the growing practice has grave implications for blacks and Hispanics, who are disproportionately represented in the criminal justice system and face high rates of unemployment.

"You thought prison was hard, try finding a decent job when you get out," EEOC member Chai Feldblum said. She cited Justice Department statistics showing that 1 in 3 black men and 1 in 6 Hispanic men will be incarcerated during their lifetime. That compares with 1 in 17 white men who will serve time.

The EEOC also has stepped up enforcement in recent years. It currently is investigating over 100 claims of job discrimination based on criminal background checks.

Earlier this year, Pepsi Beverages Co. paid $3.1 million to settle EEOC charges of race discrimination for using criminal background checks to screen out job applicants, some who were never convicted.

Constance Barker, one of two Republicans on the commission, was the only member to vote against the new policy. She blamed colleagues for not letting businesses see a draft of the guidelines before voting to approve them.

"I object to the utter and blatant lack of transparency in the process," Barker said. "We are now to approve this dramatic shift ... without ever circulating it to the American public for discussion."

But other members said the commission held a major hearing on the issue last year and took more than 300 comments.

Nancy Hammer, senior government affairs policy counsel at the Society for Human Resource Management, said a big concern is the potential conflict between the new guidance and state laws that require criminal background checks in certain professions.

Nurses, teachers and day care providers, for example, are required by some state laws to have background checks. The new guidelines say a company is not shielded from liability under federal discrimination laws just because it complies with state laws.

Devata, the employment attorney, said the new guidelines may have a chilling effect that discourages employers from conducting criminal checks.

"I think some businesses may stop doing it because it's too hard to comply with all the recommendations in the guidance," she said.

The NAACP praised the new guidelines, saying they would help level the playing field for job applicants with a criminal history.

"These guidelines will discourage employers from discriminating against applicants who have paid their debt to society," NAACP President-CEO Benjamin Todd Jealous said.

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I'm white and have had issues with my backgrounds that were back when I was 18-21. Just because you have a clean record does not mean you haven't broke the law. You people who think their s... don't stink have a wake up call coming your way. How would you like it if you couldn't make any money to feed yourself and your family, I think you would eat those words you say. You have to give people a chance to make money unless you want the crimes to come to your house. This background and credit crap is just another way for you rich people to discriminate and show how evil you truly are. How could you refuse a person to feed himself and his family by working hard? You people are so full of it that it makes me sick. I think we should take all the wealthy people and seclude them with no means of food or shelter and maybe then these jerks would stop it with the hate then....There is nothing worse than a bigot hate monger, just because you don't have a record does not mean you are a trustworthy good law abiding citizen. Get your heads out of your arses and wake up, things have to change otherwise there will be hell to pay. All in all, people that try to stop others from eating and having a place to call home will get theirs in the end, you all better start changing your ways because this is all about hate and discrimination. I pray you people get to see how it is to go without.

February 09 2015 at 6:46 PM Report abuse rate up rate down Reply

Companies do not come out and tell you they wont hire you with a felony instead they make you jump through hoops, applying interviewing and then hire someone else. - Some people are stuck with felonies because of poor representation and others STILL have impeccable references since. - The whole system needs to be revamped ""It's going to be much more burdensome," said Pamela Devata, a Chicago employment lawyer who has represented companies trying to comply with EEOC's requirements. "Logistically, it's going to be very difficult for employers who have a large amount of attrition to have an individual discussion with each and every applicant."" - If you dont give people a chance to explain or to say what has happened SINCE. Credit checks are BS unless you are applying for a high level financial job. Credit Checks are an invasion of privacy - take someone who has been unemployed for 6 months or more do you really think they will have good credit? People make all kinds of assumptions about felons as it is. - I am not talking about LONG histories of felonies etc. A one off felony does not = a lifetime felon. Housing discrimination is another area. I can see pedophiles and violent/drug related crimes. - Criminal Background checks ARE used to discriminate - wake up. -

July 08 2013 at 8:16 AM Report abuse rate up rate down Reply
Mrs Roberts

The Home Health Aide Certificate is the easiest to obtain and can quickly transform an unemployable, unskilled person into an employable person with opportunity. The field of home health aide is growing and there will be alot of opportunity to earn a decent wage for these minimally trianed people. Why are we making it so difficult for them instead of making it easier? It just doesn't make sense. The home health aide certification courses cost $200 to $600. Why isn't this course offered at our county nightschools at an affordable rate. Why aren't we subsiddizing the tuition for people on welfare. Why are we charging an enormous out-of-proportion fee of those who can least afford it for level 2 background checks? This would be one of the easiest ways to reduce the welfare rolls and we should be helping people to get off welfare by removing these obstacles. Shame on all of us for being so stupid

April 29 2013 at 9:40 PM Report abuse rate up rate down Reply

Levels the playing field? So that a person with a demonstrated history of being "Trustworthy", should be on equal footing with a person who has been Trusted to not escape or commit further Felonies? I believe in hiring former offenders but I don't hire them blindly and I listen to their version of what happened and their current situation before considering them for any position that exposes them to my customers or their property. Even then, my concern for my customer trumps my personal feelings. Anyone with Prison time for violence or theft will not be considered regardless of heritage. I grew up in the streets too, everyone has options. Surviving at the expense of others isn't just taking advantage of an opportunity, it indicates a carachter flaw that will only go away with time spent learning another way. Life sucks in minimum wage, but it's the place where the worst qualified become the best qualified.

March 27 2013 at 12:14 AM Report abuse +1 rate up rate down Reply
1 reply to rondonit's comment

You cannot support a family on minimum wage or even slightly above . Single mom special needs child 1 felony - (theft) 7 years old no jail. EXCELLENT REFERENCES SINCE in addition to handling cash, credits etc.. - oh Masters Degree as well. The questions should be removed from applications until brought in for an interview.

July 08 2013 at 8:23 AM Report abuse rate up rate down Reply

This creates a problem for those hiring in certain states that require background checks for certain occupations.

March 26 2013 at 12:52 PM Report abuse rate up rate down Reply
John F

Unfair burden on minorities?!?!?!?!?!?
Gee, it couldn't be because minorities commit the vast majority of crimes could it? NOOOOOOOOO way...

March 24 2013 at 10:01 AM Report abuse -1 rate up rate down Reply
Susan Gate

Wow... if I vote up with someone I agree with... their points go down... vote down and the points go up... this isn't right

February 24 2013 at 1:05 AM Report abuse +1 rate up rate down Reply

I think if the person did his tme and has not been in trouble for years then they should get a chance for any job.
Now if the crime is rape,or extremely violent crimes or against children then i would probaly would not hire them.

September 20 2012 at 2:27 AM Report abuse +2 rate up rate down Reply

1 in 3 black men and 1 in 6 Hispanic men will be incarcerated during their lifetime. That compares with 1 in 17 white men who will serve time.
I am shocked that 1 in 3 black men serve time in jail at some point in their lives. It is worth finding out why this is. i think there is a focus on finding and arresting black people. I believe racism is very much a factor in the reason why so many more black people are jailed compared to white. The argument minorities commit more crimes is BS and is a racist defense for what is happening.

September 20 2012 at 2:06 AM Report abuse +1 rate up rate down Reply
1 reply to Luna's comment

In response to your debathery of the white race and the statistics of non white crimes .I think you need to do a little research .Stop blaming the white man for crimes committed 200 years ago(remember though that slaves where sold to white plantation owners by black leaders of africa and the such) these slaves where the bottom of the barrel and where not wanted in their own lands.So the ancenstory of these violent offenders where criminals(ruthless rapist,murderers and the criminally insane. So there is the reason its 1 in 3 . Just stop the hatred toward the white race...We are educated and can not be guilty of a ha-nous crime that happened years before we wore born...

November 02 2012 at 11:04 PM Report abuse +2 rate up rate down Reply

What about the white guy? Seems I am becoming more and more one of the minorities. I screwed up 15 years ago and took a bad rap for a family member and I still pay for it till this day. Guess you got to be black, or a single mother in this country to get any help or get a decent job. I got laid off 3 years ago from a good paying job and made a good honest living in the trades and sence then i've bonced from one dead end job to another, makeing next to nothing. Pretty much lost everything because of it. All cause of something I did 15 years ago and now anyone with a computer can find out about it. I think there should be something done about it, but i dont think its fair to the rest of us to favorite one color over another.

September 19 2012 at 9:19 PM Report abuse rate up rate down Reply

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