WASHINGTON (NNPA) — The U.S. Equal Employment Opportunity Commission has issued updated recommendations that urge employers not to misuse criminal background checks in filling job openings.

By a vote of 4-1 last week, the commissioners noted that African-Americans and Latinos may find it more difficult to find employment because of the widespread use of background checks. “Arrest and incarceration rates are particularly high for African-American and Hispanic men,” the EEOC report stated. “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarnation rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and 1 in 3 for African-American men.”

Those numbers have increased as the proportion of Americans who have had contact with the criminal justice system has risen over the past two decades.
According to the EEOC report, only 1.8 percent of the adult U.S. population in 1991 had served time in prison. By 2001, that figure had risen to 2.7 percent and to 3.2 percent (1 in every 31) by the end of 2007. If that trend continues, 6.6 percent of all persons in the United States born in 2001 will serve time in a state or federal prison during their lifetimes.

Using background checks to screen job applicants – especially for jobs that are not in such sensitive areas such as banking or law enforcement – could have an intended effect of discriminating against people of color. “An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1965, as amended,” the EEOC report states.

Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. “A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity,” the report observed.

The Lawyers’ Committee for Civil Rights Under Law, which has ongoing projects aimed at eliminating the overuse of criminal background and credit checks in employment, praised the EEOC’s new guidances.

“The use of arrest records, including arrests that occurred decades earlier or had not resulted in convictions, to screen people applying for jobs contributes significantly to the unemployment of African American, Latinos and Native Americans,” said Executive Director Barbara R. Arwine.

NAACP President Benjamin Todd Jealous said, “The Equal Opportunity Employment Commission’s decision will help balance the playing field for job applicants with a criminal history. Our criminal justice system is deeply biased against people of color, and that disparity can carry over to the job search. These guidelines will discourage employers from discriminating against applicants who have paid their debt to society.”

Arwine said the EEOC needs to take additional action to level the jobs playing field. She said, “We will also continue to urge the EEOC to issue long awaited guidance on the misuse of credit history to deny employment, a practice which falls most heavily on minorities and the unemployed.”

The EEOC noted that 92 percent of companies run criminal background checks on some or all job applicants. Such information is easily attainable, either from third-party suppliers or a check of the Internet. “Information about federal crimes such as interstate drug trafficking, financial fraud, bank robbery, and crimes against the government may be found online in federal court records by searching the federal courts’ Public Access to Court Electronic Records or Case Management/Electronic Case Files,” the report said.

The FBI’s extensive record system can be accessed for employment purposes by those seeking jobs in banking, nursing homes, securities, nuclear energy, security guards, transportation, federal agencies and other sensitive areas.

A major problem with these records, according to EEOC, is that half of the entries do not contain final disposition of cases. Therefore, a person could have been charged with a crime and acquitted, yet that wouldn’t be reflected in the data bases.

A similar problem exists with state records.

Even if a person has committed a crime in the past, the EEOC noted, employers should look at the nature of the crime, the time elapsed and the nature of the job held or being sought. “We salute the EEOC’s bipartisan effort to update its guidelines to ensure that employers are not unfairly excluding otherwise qualified applicants from the job market,” said Debo Adegbile, Acting president and director-counsel NAACP Legal Defense and Educational Fund. “No one should be penalized for the rest of their life for mistakes that they made in the past. Our whole nation benefits when we open up opportunities for people who are willing and able to become contributing members of our society.”

George E. Curry

NNPA Editor-in-Chief