More information has come to light about the Seattle proposal to restrict employers’ ability to use criminal background checks. I wrote about the ordinance and confusion surrounding the proposal here a couple of weeks ago. As it turns out, maybe the headline that drew my attention (and criticism) in my last post was right.
The proposed ordinance was introduced by Seattle Council member Bruce Harrell with the support of the Seattle Human Rights Commission. Now that the details of the proposal have been made public, employers are justifiably concerned. And not to sound alarmist, so should anyone who cares about the financial security and the safety of Seattle businesses, consumers, and employees. Don Brunell, president of the Association of Washington Business, recently wrote an op-ed echoing my concerns, that appeared in the Columbian on September 18th.
Public comment in support of the bill was heard by the Seattle Public Safety, Civil Rights and Technology Committee on September 19, 2012. The emotionally charged meeting included a long parade of proponents who showed up to testify in support of the bill. Notably absent was any opposition. The eclectic group included attorneys, non-profits such as Puget Sound Sage, the NAACP, the South Seattle Community College, ex-cons, parents of ex-cons, siblings of ex-cons, and a singing activist group of seniors known as the Raging Grannies. If you have an hour to kill you can see for yourself– a video of the hearing can be found here.
Supporters believe that the ordinance will boost public safety by reducing recidivism and unemployment amongst ex-offenders. They claim that the law will not allow frivolous actions—all charges will be fully investigated, and there is no private cause of action. Unfortunately the other side of the issue has not officially been heard nor publicly discussed.
A few points that Councilman Harrell and his colleagues need to consider:
• The proposed ordinance is a drastic measure that would create an unprecedented legal standard. The legal standard proposed in the new ordinance goes far beyond what the courts, Congress and even the EEOC require an employer to consider. It would require a “direct relationship” between the criminal offense and the job sought, and would require that the employer could “reasonably foresee” whether hiring the individual would result in harm or injury. This standard is a far stretch from the already cumbersome test advocated by the EEOC in its guidance and would require employers to exercise superhuman powers or otherwise face the threat of legal action.
• The legislation as submitted would establish ex-convicts as a protected class. Unlike Title VII and EEO laws, the ordinance would allow any ex-offender, regardless of race or color or other protected status, to allege a violation when a decision is made based on a criminal record. The ordinance would allow a white ex-offender to have a potential claim against an employer who chooses to hire a law abiding citizen of any race or color. This outcome is absurd, is not supported by any legal precedent, and puts employers at risk for a whole new wave of litigation.
• The proposed ordinance presumes that a job ensures that someone will not be a repeat offender, while offering employers no safe harbor if they choose to hire someone known to have a previous record. It requires that employers all but ignore the potential connection between past criminal behavior and future transgressions.
The end result is a scenario where employers cannot reasonably act upon criminal background checks. Which leads to fewer checks. Which leads to unscreened workers being hired to work in your home, take care of your yard, drive your truck, clean your hotel room, or deliver your pizza. Not good.
Council member Harrell said he wanted to “socialize” the proposed ordinance to hear from other stakeholders. Let’s hope he expands his invitation list to the next party.