Are Employers Racist for Conducting Employment Background Checks?

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In a recent letter to The Wall Street Journal, EEOC Chair Jacqueline Berrien took exception to their characterization (Banning Background Checks) that the commission believed that criminal background checks were racist.

WSJ: Are criminal background checks racist? That’s the startling new legal theory that the Equal Employment Opportunity Commission unveiled this week in lawsuits against employers.

Commissioner Berrien: “Your editorial Banning Background Checks(June 15) suggests that the U.S. Equal Employment Opportunity Commission (EEOC) believes that criminal background checks are ‘racist.’ This claim is wrong.”

Background checks vs. adverse action

More than 90 percent of all employers conduct pre-employment background checks (according to the Census Bureau there are nearly 14 million businesses in the United States with employees). More than 2,000 background screening companies provide these checks to employers.

Does that mean that we are all racists who discriminate against minorities if we conduct background checks?

According to EEOC Commissioner Berrien, the fact that we conduct employee background checks doesn’t make us guilty of discrimination. However, if we decide to take adverse action based on the results of those checks, well then, perhaps we are.

Berrien: Neither Title VII of the Civil Rights Act of 1964 nor the EEOC prohibit employers from conducting background checks. Employers are also free to use background checks in making employment decisions, subject to the express long-standing, well-established requirement of Title VII that, where they do use such information and it has a disparate impact against a protected group, it must be related to the job in question and consistent with business necessity.

WSJ: The EEOC alleges that BMW discriminated against blacks because it screened contractors in South Carolina for convictions for “Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations,” and more blacks than whites are convicted of those crimes.

“Employers do discriminate”

So in essence the U.S. Equal Employment Opportunity Commission has decided to be the arbiter of what constitutes job relatedness and business necessity. Aren’t employers in a better position to do that? Aren’t they the one’s who are responsible for protecting their employees, their customers and their businesses? Aren’t they the one’s who suffer the effects of crime in the workplace and get sued for negligent hiring?

I want to let you in on a little secret if you promise not to tell anyone: Employers do discriminate.

They search through resumes and weed out people that don’t have the proper qualifications for a job. They interview people and only those who do well and seem to have an organizational fit move on. So far, that would seem to meet the definition of discrimination.

And yes, they conduct employment background checks and choose not to hire some of those candidates due to certain criminal records. They even discriminate against those with criminal records because most of them get hired while only a small minority of them do not. Evidence of this can be found in our recent Background Screening Trends Survey results where employers indicated that they hired those with criminal records nearly 90 percent of the time.

Notice that I didn’t once talk about how the color of a person’s skin, their gender, religion, sexual orientation, religious beliefs or even their love of the Miami Heat factored into the equation. That is because it doesn’t.

If you have the right qualifications and experience, you are going to get a serious look. If you interview well, you’ll advance even further. Many employers are even willing to overlook resume lies (another finding from our survey trends).

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Who should we be protecting?

Employers are color-blind, gender-blind, religion-blind and blind to every other Title VII protected class information when it comes to employment background check (please note that Title VII does not protect those who have been convicted of criminal activity). They only care if a person’s past behavior highlights something about their character or predicts future behavior that represents an unnecessary risk.

Do we, as a society, think that it is more important to protect the rights of those who could cause harm than to protect employers, employees and, or customers?

Even the EEOC doesn’t believe that or they wouldn’t adhere to the government hiring standards when it comes to employment background checks. And contrary to what they say, job relatedness and business necessity should not be the only barometer.

Consider the story we wrote about earlier this month about a cab driver that shot a police officer in the head after being pulled over for a routine stop. It turns out that the driver had an ample history of criminal convictions, but arguably none of them alone would have constituted a clear reason to deny employment. However, when looked at in total should have raised significant red flags.

Unfortunately, the company that hired the driver didn’t think it was important to conduct a background check, so they never knew. As a result, the company is being sued for $10 million.

A few facts to consider

Does the EEOC applaud the cab company’s decision not to conduct a background check? Probably not. If they had conducted a background check, would the EEOC think that the decision they made was discriminatory? That’s the question employers are faced with.

But before we reach the conclusion that we’re all racist or engage in discriminatory practices, let’s consider the following facts:

  • Description of people that conduct background checks: Men, Women, White, Black, Hispanic, Asian, Gay, Straight
  • Description of candidates with criminal records: Men, Women, White, Black, Hispanic, Asian, Gay, Straight
  • Description of candidates without criminal records who are hired: Men, Women, White, Black, Hispanic, Asian, Gay, Straight
  • Description of candidates with criminal records who are not hired: Men, Women, White, Black, Hispanic, Asian, Gay, Straight
  • Description of candidates with criminal records who are denied employment: Men, Women, White, Black, Hispanic, Asian, Gay, Straight

Looks like a big melting pot to me. The only people who are hurt by these background checks are those that have been convicted of crimes that would make them ineligible for certain positions. What they look like, who they like and what they believe aren’t considered.

This was originally published on EmployeeScreen IQ.


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