Criminal background checks under fire

And now some good news for ex-offenders:  Pressure is heating up again on employers who use  criminal background checks for job screening.

In recent days,  two  major discrimination lawsuits have been filed alleging conviction and arrest records were used inappropriately to deny employment.  The first,  a class action against Accenture Inc. , holds the consulting firm discriminated by using a 10-year-old conviction record to automatically disqualify Roberto Arroyo from a full-time job even after he’d proven himself.  The second  alleges the U.S. Census Bureau’s requirement that all applicants be run through the FBI database and provide proof of the dispositions of any arrests, was onerous and discriminatory.

The lawsuits come as the Equal Employment Opportunity Commission works to  step up enforcement in cases of discrimination related to background screening.  The EEOC, in fact, is expected to release new guidelines soon that will  re-emphasize the importance of analyzing screening results on an individual basis – and require employers to use empirical data in support of  their hiring decisions. That means considering factors like the length of time since the offense, and what the job seeker has done since then.  “Many employers have started using very fuzzy criteria,” says Sarah Crawford, senior counsel with the Washington D.C.-based Lawyers’ Committee for Civil Rights Under Law, which filed the lawsuits .  “They have blanket bans on hiring people with any history at all. You can’t do that.”

(To backtrack for a sec:  It’s important to remember  there are no specific  protections for ex-offenders under the 1964 Civil Rights Act.  But restrictions on hiring people with criminal records have been found to have disparate impact on certain protected groups, and are therefore considered  discriminatory.   Bureau of Justice statistics, for example,  show that 17 percent of African-American men have been incarcerated, compared to 8 percent of Latino men and 2.6 percent of white men.  African Americans make up 13 percent of the population, but account for 38 percent of felony convictions.  Latinos are twice as likely to be arrested as whites.   So arbitrarily screening out anyone with a record, discriminates against blacks, Latinos and other minority populations.)

Ossai  Miazad, an attorney with New York’s Outten and Golden LLP, the lead counsel on both cases, said her firm has experienced “a definite increase” in individuals coming in with concerns about background screening.  “There seems to be this gray area now,” she says. “Companies aren’t complying in ways that they should be.  They’re not taking into account the nature of the person’s offense, or their suitability for the job.”  Miazad is also skeptical when companies say they are worried about negligent hiring.  “As soon as you start looking at studies and data,”she says, ” after 7 years the statistics level out. The risk is no greater for an ex-offender than for someone who’s never been arrested.  This notion that a screen is going to protect you  – it’s a bit of a farce.”

For this reason, Outten and Golden, The Lawyers’ Committee, and a coalition of other legal and social justice organizations are making a concerted effort to go after cases that involve misused background data.

Think you might have  experienced discrimination as a result of background screening?  Below are some details on these recent cases and insights into why the attorneys took them:

1.  Roberto J. Arroyo et. al, v.  Accenture Inc. ,  filed April 8, 2010

What’s alleged: Mr. Arroyo worked as a  contract technical support employee for management consulting firm  Accenture for nearly  a year and a half.  In  April, 2007, Accenture offered him permanent employment subject to a background check.  Unfortunately, ten years earlier when Mr. Arroyo was a senior in college, he’d been convicted for vehicular manslaughter while driving under the influence. Since then, he’d completed his bachelors degree and served in the Army during Desert Storm.  But when his background check came back,  Accenture withdrew its job offer and terminated Mr. Arroyo’s employment.  So far Accenture has had no comment on the suit.

Why it’s questionable: Under Title VII of the Civil Rights Act a procedure that automatically screens out ex-offenders would have a disparate impact on African Americans, Latinos and other groups and therefore be discriminatory.  In addition, some states (and cities), including New York, Hawaii, Wisconsin and Pennsylvania have enacted more comprehensive legislation protecting ex-offenders against employment discrimination.  The New York law, for example, requires a direct relationship between one or more of the previous criminal offenses and the specific employment.

What the lawyers say: When Sarah Crawford at the Lawyers Committee first got the call from Mr. Arroyo , she says, “I was particularly taken by the fact that here is someone who had already performed the job  for 17 months. He  did such a good job that he was offered a permanent position by Accenture.  Then they ran their background check and found a 10-year-old offense and that was it.   There is no driving involved in this job, so his offense is not related to the position.   It’s not a matter of taking chance on him since he’d already shown he could do the work.”   Mr. Arroyo, she adds, “recognized he displayed bad judgment in the past.  But are we just going to say these people are unemployable for life?”

2. Eugene Johnson and Evelyn Houser et. al. v Gary Locke, Secretary U.S. Department of Commerce, filed  April 13, 2010

What’s alleged: This class action lawsuit alleges that in trying to fill temporary jobs for the 2010 Census,  the U.S. Census Bureau  systematically discriminated against 1,000 of applicants by screening out those who had arrest records – regardless of whether these records led to an actual conviction or were relevant to the work.    In the case of Mr. Johnson, it had been 15 years since he was convicted of a misdemeanor for which he was never sentenced to jail.  Mrs. Houser had committed a crime in 1981, which involved cashing a single check she found be a dumpster to feed her family.   She was never convicted, completed a diversionary program and has not been arrested since.  In fact, she even worked as an employee in the 1990 Census.  

Why it’s questionable: Latinos, Blacks and non-white Americans are more likely to have arrest records, so under Title VII of the Civil Rights Act, the hiring practices used by the Census Bureau are discriminatory.  In addition, arrests are not convictions, and requiring individuals to provide proof of their disposition in 30 days puts a disproportionately onerous burden on members of these groups.

What the lawyers say:  “When you’re hearing about people who worked for the Census the last time not getting jobs,” Crawford says, “you have to really look at what’s going on.  They’re also using a database that is notoriously flawed.”  (In fact, the FBI database is missing the final disposition for roughly half of  all its arrest records.  When you consider that 1 out of 4 adults in the U.S. has been arrested, and 38 percent of those arrests don’t result in convictions, you’ve got the possibility for  a large margin of error.)

For more information you can also go to the Census Class Action Website here.

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17 Comments

Filed under background checks, criminal records, discrimination, jobs ex-offenders

17 responses to “Criminal background checks under fire

  1. Another great post. These cases represent a missing link in the battle to open up more employment opportunities for former offenders. We need more of these legal challenges.

  2. With the EEOC and coalitions like these looking more closely at background checking, I suspect we’ll definitely see more challenges.

    Kathy

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  7. Joe

    As an ex Human Resources Manager, whatever standards that the EEOC proposes or sets in stone, there will be ways a company can get around hiring someone with convictions. Case in point, most applications are done on line, answer yes to a conviction, the application is deleted, no record. Outsource, some way some how these 3rd party companies will be imune to the same standards, as in California, a company can only go back 7 years when doin a background check. However, a 3rd party party can go back with no limit. In order for the EEOC to address this issue effectively, they will have to put in the controls to ensure this does not happen. Making companies keep track of all on line applications. Companies report on how many applications were submitted by people with convictions compared to the amount hired, as long as they fit the EEOC criteria , such as revelance of crime to position. I myself do not see this happening, background check companies seem to have a powerfull lobby.and are making every attempt to make enroads in European Union. Also I do believe that the criminal justice system, as a large goverment employer, relys heavely on repeat offenders. Ensuring that this category of citizen remains unemployed keeps the system well oiled. Unfortunely, I feel that this effort by the EEOC is a large in part, not going to be effective. Al I know is, as I wrote earlier, I was an H/R Manager for a Fortune 100 company. This was long before background checks became fashionable.

    • Joe,

      Thanks for writing. You make some really good points and it’s great to hear from someone in HR who actually knows how hiring decisions are made. I certainly agree with you that no matter what the EEOC does, there will always be loopholes. Still, I’m hopeful that making employers aware they could run afoul of the law by automatically eliminating individuals when background checks reveal a past record, might encourage some to – at the very least – give these individuals a second look. I don’t doubt that background checks are a powerful lobby, but I also think that when you reach a critical mass in people being affected — and with high unemployment and 1 in 4 adults in the U.S. having records I think we’re close to that — things have a way of forcing a correction. As for repeat offenders being tolerated to save government jobs — I think we’re well beyond that. Corrections budgets are being cut everywhere, which means that newly released individuals who can’t find jobs and perhaps become repeat offenders will be less likely to be sent back to prison, which would seem to mean more safety and other issues in U.S. communities. I’m not sure anyone wants that.

      As for companies automatically deleting online applications where an individual answers yes to a conviction — I would think this would be no different than employers who throw an application in the garbage when they see a yes here. Applying online is just using a different method of delivery — and one I would argue that might protect an individual more since the job applicant usually retains a copy of his online application as well as confirmation that it was received. In other words, deleting these application would seem to leave a trail that smart employers would be wise to avoid. Or is there some way around this I’m not seeing?

  8. stacy

    Maybe if the party wasn’t striving to be so pure, this wouldn’t even be necessary. Acriminal background checks is a big deal and people need to be more aware of things so its always good to run your own checks on people. After all, there have only been two perfect humans ever created. One of them fell from grace and the other was killed on a cross.

    • Joe

      Stacy,

      You are correct about the two perfect humans, but the one who was nailed to the cross, by todays standards was a convicted felon,. His sentence was greater than 12 months, death, hence by definition a convicted felon. Our lord could not find a job in todays market.

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  12. James Lewis

    The fact that background checks vary so much makes an applicant wonder what will appear. You consistently state that the applicant should run their own check to make sure what will appear; however, many of the service providers will return no results. Providers, like ADP, find things that others do not.

    I recently received an offer from a large IT organization and was informed that I had the job, after the written offer was recieved, and the background check was complete. The day before I was to start, and two days after I left my employer, I was inform that they were rescinding my offer because of something I forgot had appeared.

    Is this fair to a Desert Storm veteran with advanced degrees? FYI – I’m a white all-american boy…

  13. Let us be honest, we all are curious from time to time about the legal background of our company associates, buddies, acquaintances and even loved ones. Whether this search is for individual use or for company functions, one can find all the necessary information about a specific person. This process entails looking up and compiling criminal records, commercial records and financial records of an individual. On-line background checks are becoming popular due to their availability on the Web and their accessibility to public records.

    • Alan,

      You’re absolutely right. Background checks have become so easy to do that it is difficult to avoid one if you are looking for a job. The point of this piece is whether background checks can legally be used to disqualify an individual from a job. The answer is only in those situations where there is a relationship between the job duties and the crime (ie. embezzlement and banking or molestation and working with children). In other instances employers need to take care that they are considering other factors and be aware that blanket policies barring ex-offenders — in addition to being shortsighted and ruling out a number of exceptional employees — could get them in legal trouble.

  14. Jeremy

    I was fired for an incomplete FBI record that was sealed in 1991your but was denied inclusion in the class action suit based on my race.

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