June 14 2013

Are Criminal Background Checks Unfair?

Charlotte Hays

In a story on companies that have come under attack for using criminal background checks in the hiring process, a Washington Post reporter penned this intriguing sentence:

A criminal record, advocates say, is an economic scarlet letter that can send otherwise qualified applicants to the bottom of the pile.

But here’s the deal: a criminal record is supposed to be a stigma. The story treats employers’ taking a criminal record into account as unjust. Think about that: you have two applicants, one has been in the clinker and one hasn't. Any preference?

The peg for the story is that the Equal Employment Opportunity Commission has accused two companies of “indirectly discriminating against African Americans by using criminal background checks to screen out workers.”

Note to EEOC: these companies are not discriminating against African Americans. They are discriminating against people with criminal records. If a larger number of African American men end up with criminal records, then that is the problem society should be addressing. Maybe we could even ask people in a position to hire to be compassionate about people with records--even though hiring ex-cons might indeed pose a risk. But going to court over this?

Let's not pretend that being an ex-con is irrelevant when a potential employer looks at an applicant. This is not racial discrimination. It makes good sense to be careful about hiring people who have run afoul of the law, especially if these employees will be handling money. The story reports:

The [EEOC] commission said BMW effectively fired 70 black employees with criminal histories from a facility in South Carolina, even though many had been there for years. One woman with 14 years under her belt was let go after a misdemeanor conviction surfaced that was more than 20 years old and carried a $137 fine, according to the EEOC’s lawsuit.

The agency also alleged that retailer Dollar General revoked job offers to two black women after conducting criminal background checks. In one case, the EEOC said that the records were inaccurate but that Dollar General declined to reconsider the woman’s application. The other involved a six-year-old drug conviction.

It is a fairness issue,” said David Lopez, the commission’s general counsel. “Litigation is really, truly the last resort.”

I feel sorry for the woman who was fired after working for the company fourteen years. If she was otherwise a good employee, management might have considered a more sympathetic decision. But we’d need to know more about the misdemeanor to side with the woman. The Post story also dismisses a six-year-old drug conviction as piffle. Sorry, but even though I personally favor drug legalization, that doesn't sound like a small matter.

The story continues:

The growing use of criminal background checks in hiring decisions has become a flash point in the broader debate over high unemployment rates among African Americans. Not only did blacks lose more jobs and more wealth than other racial groups during the recession, they also have struggled to gain a foothold in the recovery — an issue some community leaders have called the next front in the civil rights movement. A criminal record, advocates say, is an economic scarlet letter that can send otherwise qualified applicants to the bottom of the pile.

The problem isn’t criminal background checks—it’s criminal behavior.

Second chances are a great thing. If a boss wants to take a chance and give somebody one, that is both potentially risky and highly commendable. It is a charitable act but not something that should be forced on employers through the courts. It's not up to the EEOC to step in and decide that hiring and firing based on a criminal record is somehow racist. It is also disheartening to think that "some community leaders" see this issue as "the next front on the civil rights movement." It would be better to concentrate on programs that help young African American men before they have criminal records.

It might also be appropriate for advocates to talk to potential employers on behalf of people who are turning their lives around and need a job. But it should be left up to the person doing the hiring, not lawyers at the EEOC.

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