Reining in background checks

Americans tend to go for extremes.  So you knew a lot of people would have to have their job prospects quashed by employment background checks before something would change.

Now it appears we might be getting close to that point. Why?  With unemployment at 10 percent, more people are looking for work.  Many of them – even those who have been working productively for years – are finding that arrests or convictions far in the past can come back to haunt them.  Some recent articles (here , here and here), plus conversations I’ve had with legal and regulatory folks suggest that sympathy may be tilting towards the re-entering job seekers.

The EEOC, for example,  is “much more interested in focusing on the effect of criminal records on employment,” says EEOC assistant counsel Carol Miaskoff. “To the extent that issues are front burner here (at the agency),” she continues, ” this one is.” So far this year, the agency has brought two major cases:

  • On March 26, the EEOC settled a case against Franke Foodservice.  The charge?  The company had not hired a black applicant who disclosed a felony conviction on his record even though it hired a white applicant who made a similar disclosure a year earlier.
  • More recently, on October 1, the EEOC filed a case against Freeman Companies, a Baltimore-based events and convention planner. Here the EEOC charged that by screening out ex-offenders, the company had engaged in “a pattern or practice of unlawful discrimination by refusing to hire a class of black, Hispanic or male applicants across the United States.” 

Civil rights law doesn’t specifically protect people with criminal records.  But the  EEOC has found that policies excluding individuals based on arrests and convictions that have nothing to do with the job, may have a disparate impact on certain populations.  This means they could  constitute discrimination.  In the Freeman case, for example,  barring people with criminal records from employment was determined to be illegal as it would unfairly impact blacks and Hispanics.

Miaskoff was prohibited from  discussing ongoing investigations, but emphasized that the EEOC is stepping up efforts to pursue charges where there is proof of discrimination.  “This is not fantasy,” she said.  Athough she cautioned ex-offenders not to get their hopes up as these cases take time.  The EEOC is currently working on new guidelines for employers, as a follow-up to a meeting late last year.

What can former offenders do?  Gabrielle Delagueronniere with the  Legal Action Center in Washington, DC. recommends individuals encountering discrimination check with the specific laws in the city of state where they live.  Some states such as New York and Wisconsin specifically ban discrimination  based solely on a criminal record, except in cases where the charge is substantially related to the job. For more information check out LAC website or regulations in your state here.

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3 Comments

Filed under background checks, discrimination

3 responses to “Reining in background checks

  1. Pingback: More on background checks « Out and Employed

  2. Pingback: Can ex-offenders redeem themselves? « Out and Employed

  3. Pingback: Criminal background checks under fire « Out and Employed

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