The Equal Employment Opportunity Commission as been working towards proving that, in some instances, background checks can create a disparate impact on minorities. Disparate impact can happen in the hiring process when neutral policies affecting hiring can adversely impact a protected class of people, such as African Americans or Hispanics. If a company is proven to discriminate in this manner it can cost them thousands of dollars to correct. Also, these background checks merely show you what someone did on paper.
They do not reflect the circumstances of the case or even acknowledge what the person has done to right their rings. Those who support the use of these background checks say they protect their company and the public from “a problematic employee committing theft or fraud or harming a third party’ (Bible). But as our society progresses, we must be mindful of the harm we are doing when tying to protect ourselves. Thus, merely having a criminal conviction should not be the sole reason why an applicant is denied a chance for employment.
The main defense for using criminal background checks is “both to protect customers, co-workers, and the public from employees’ potential violent acts and other rounding and to shield themselves from tort liability for negligent hiring and other causes of action stemming from failure to adequately screen job applicants and employees” (E EEOC Likely to Update Guidance on Employer use of Criminal Checks). Not only do companies need to make sure that candidates are qualified for the position they are seeking, but they have a duty to make sure an applicant does not pose a threat to the business or third parties such as customers.
Richard Mellon, vice president of loss prevention for the National Retail Federation said that “while employers agree hat ex-offenders should receive a second chance, employers would be negligent not to perform their due diligence on workers who enter customers homes, drive company vehicles, and are placed in positions of trust” (EEOC Likely to Update Guidance on Employer use of Criminal Checks). Supporters for the use of criminal background checks have also found data in regards to the proportions of minorities hired with and without criminal background checks. Peter Kirkland, a member of the U.
S. Commission on Civil Rights, is hoping that these studies make their way to the Equal Employment Opportunity Commission which “indicate that when an employer initiates a criminal background check, 12 percent of those hired are black applicants but that when employers’ use of such checks is restricted, the hiring rate for black applicants falls to 3 percent” (EEOC Likely to Update Guidance on Employer use of Criminal Checks). Some companies are taking the protection of their business and their name to another level by rejecting anyone with certain convictions on their criminal record.
These companies are using what is known as a blanket policy, which will bar anyone from employment if they eave a criminal record. Victoria Lippie, the Commissioner of the Equal Employment Opportunity Commission said that “Employers with a blanket policy, such as a bar on hiring any applicant with a past felony conviction, face a problem under Title VII of the 1 964 Civil Rights Act, given the disproportionately high incarceration rates of black and Hispanic individuals and the potential for blanket policies to have a disparate impact based on race” (EEOC Likely to Update Guidance on Employer use of Criminal Checks).
Depending on where the company is located, there might be a law not allowing them to consider anyone with a criminal record. Jon D. Bible, a professor of business law at Texas State university said that “an employer could violate Title VII, as construed by the EEOC, if it rejects someone based on a criminal background check required by state or local law” (Bible). These laws and the guidance enacted by the Equal Employment Opportunity Commission are putting businesses between a rock and a hard place.
Companies all around the United States have been revamping how they treat criminal convictions for employment and getting rid of their blanket policies. These blanket policies are not only linked to having a disparate impact, but they are also illegal in certain states and can carry hefty fines. Party City is one company that paid the price for their exclusion of individuals with a criminal record by having to pay out $95,000. “As part of its settlement with the state, the party supply retailer has agreed to reconsider applicants that were previously rejected because of a criminal history’.
It will also work with criminal groups for future employee recruitment, retrain hiring managers and port to the state to verify its compliance” (Christiana). Title VII of the Civil Rights Act of 1 964 was made to protect people from the discrimination of race, color, religion, sex or national origin within employment. Lately, background checks have been unofficially creating a new protected class, “criminal convictions” (Bible).
A spokesperson for Society for Human Resource Management said “the interpretation of disparate impact makes employers vulnerable to an EEOC investigation any time they take an adverse action against people of certain races or national origins based on a criminal aground check even if they have made an individualized assessment” (Bible). The Equal Employment Opportunity Commission has put out a Guidance to help employers on determining whether or not background checks are disproportionately affecting minorities.
Within this guidance are three Green factors which help on assessing whether or not the crime is a suitable defense for not hiring an individual. These factors are: (1) “The nature and gravity of the offense or conduct,” (2) “The time that has passed since the offense or conduct and/or completion of the sentence, and” (3) “The nature of he job held or sought” (Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII).
While it is true that a background check can shed light on an applicants’ past, this report does not necessarily reflect the person is in present day. This is when the Green factors really come into effect and the use of individual assessments prevails. These assessments can “help employers avoid Title VII liability by allowing them to consider more complete information on applicants” (Bible). An assessment can not only help employers to avoid a lawsuit from the Equal Employment Opportunity Commission but they can allow the applicant to explain what they have done since their conviction to correct past behaviors.
Maybe an applicant was convicted of drug charges 5 years ago and viewed that arrest as a wake-up call. Now, 5 years later, they have been clean from drugs and are also a productive member of society by helping to raise awareness about the dangers of substance abuse within local recovery communities. Simply stated, when you are handling the weight of criminal convictions for employment purposes, Mark R. Engel, an employment insulate, said, “Do not have a one-size-fits-all policy for all positions” (Lash). One in four adults have arrest or conviction records… ” (Criminal Records and Employment). These people will carry their mistakes with them for the rest of their lives. As a progressive nation, it is our duty to see that these people can successfully contribute to society by means of working. We should no longer bar people from working only because they have a criminal conviction. Not only does it have a discriminatory effect on minorities but it can cost companies substantial amounts of money.