Civil Rights Commissioner Takes Exception to EEOC Background Check Rules

Nick Fishman

Criminal Background Checks

As you know, background screening companies have been pretty critical of the EEOC’s new guidelines on employers’ use of criminal background checks because we think they inhibit their ability to hire qualified candidates.  The guidance has created an unfair burden on employers and makes them have to choose between relaxing their employment background check policies which could hinder their ability to protect themselves or face an investigation from their friendly EEOC enforcement officer.

Well, U.S. Civil Rights Commissioner Peter Kirsanow and and Commission Special Assistant Carissa Mulder not only take exception to the guidance for the above reasons but also think that the EEOC took these actions without the necessary research to demonstrate why the change was needed.  Check out their Op-Ed as posted on National Review Online.


The EEOC’s New Rule on Background Checks

Background checks have been much discussed in the last few weeks, primarily in the context of gun-control proposals. But it appears some background checks are favored by bien pensants whereas others are not — the latter being those conducted by employers on applicants for employment.

Last April, the EEOC issued a new policy guidance regarding businesses’ use of criminal background checks in hiring. The EEOC doesn’t have statutory authority to issue binding rules, but their policy guidances perform a similar function. Policy guidances tell businesses what practices the EEOC considers suspect under Title VII and, therefore, what practices will trigger a costly EEOC investigation. Thus, businesses are well advised to adhere to the guidances.

The purpose of the EEOC’s criminal-background-check guidance is to discourage businesses from refusing to hire ex-offenders. However laudable and necessary it may be to reduce unemployment among this cohort, ex-offenders are not a protected class under Title VII, so the EEOC doesn’t have express statutory authority to investigate and charge businesses for discriminating against ex-offenders. The EEOC gets around this impediment by invoking disparate-impact theory. The reasoning is as follows: Blacks and Hispanics are more likely to be incarcerated than whites. Therefore, even a facially neutral policy against hiring ex-offenders will screen out more blacks and Hispanics than whites. Consequently, the agency argues, this may constitute evidence of unlawful racial discrimination in violation of Title VII, giving the EEOC the authority to investigate and sue offending employers.

Unfortunately, the EEOC lacks data on which to base disparate-impact theory in this situation. In the seminal disparate-impact case, Griggs v. Duke Power, the Supreme Court found that disparate-impact discrimination occurred where two job requirements (having a high-school diploma and passing an intelligence test) had no bearing upon whether an individual could adequately perform the job.

Criminal convictions, however, can provide information about an applicant that goes beyond whether the person has the skills to perform certain functions of the job. A criminal conviction may provide insights into an applicant’s trustworthiness, reliability, respect for authority, and risk to others. If evidence shows that ex-offenders and non-offenders differ in their job performance, the use of disparate-impact theory becomes suspect.

At a hearing last month before the U.S.Commission on Civil Rights about the EEOC’s background-check guidance, the EEOC’s representative acknowledged that the agency has no studies regarding the job performances of ex-offenders compared to non-offenders There’s no statistical evidence to support or disprove the EEOC’s theory that the use of criminal background checks unlawfully disadvantages one group (ex-offenders) that would otherwise perform just as well as another group (non-offenders). In other words, the EEOC’s guidance is based on a hunch.

Despite the profound effect the guidance has on the nation’s employers, the EEOC hurriedly implemented the guidance without giving the public an adequate opportunity to comment on it. Although the EEOC did hold a hearing about the use of criminal background checks in employment, only nine witnesses were invited to testify, and of those nine, eight supported efforts to reduce the use of criminal background checks, whereas only one witness represented the interests of businesses that would be adversely affected by greater restrictions on the use of such checks. There was, obviously, little doubt about the outcome.

The EEOC’s process didn’t have to be so lopsided. In contrast, at last month’s hearing reviewing the guidance before the U.S. Commission on Civil Rights, 17 witnesses testified, including representatives of several national employer associations, major security firms, and victims’ advocacy groups, as well as ex-offenders’ advocacy groups. Not one of the employers or employer associations had been invited to testify before the EEOC.

The witnesses cited numerous problems with the guidance, not the least of which is the fact that the guidance provides no safe harbors for employers attempting to comply with conflicting state laws. Many states reasonably bar individuals convicted of certain crimes from working in particular jobs (e.g., a convicted pedophile may not work in a day-care center, etc). Yet the EEOC specifically maintains that compliance with state law is not a defense to an EEOC charge under the guidance. The EEOC will honor a state-law exemption only if the EEOC determines that the state law complies with the EEOC guidance. So a small businessman with meager resources is in the unenviable position of 1) determining whether a state law complies with the guidance, and if he’s unsure whether the law complies 2) deciding whether it’s better to be put out of business by the state or the EEOC.

That’s no way to run a railroad — or nursing home, drug store, security-guard company, doctor’s office . . .

— Peter Kirsanow, a member of the U.S.Commission on Civil Rights and former member of the National Labor Relations Board, practices and teaches labor and employment law in Cleveland, Ohio. Carissa Mulder is a special assistant on the commission and writes frequently on civil-rights issues. These comments do not necessarily represent the position of the commission.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
Nick Fishman
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  • We have definitely discussed the swing of this pendulum solely in favor of the applicants/employees. I am encouraged to see that others are feeling the same. To create these guidelines without evidence that they were necessary to back them up seems like “jumping the gun”.

    Thanks for this great post Nick!

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