Are Employers Racist for Conducting Employment Background Checks?

Nick Fishman

EEOC Employment Background Checks Criminal Records

In a recent letter to the Wall Street Journal, EEOC Commissioner 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.”

More than 90% of all employers conduct pre-employment background checks (according to the Census bureau there are nearly 14,000,000 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 Jacqueline 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.

So in essence the EEOC 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% 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).

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 posted 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.  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.

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.
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  • I don’t think anyone can disagree with you on any of these points. I believe the issue lies in situations where people are denied employment in cases of mistaken identity and the employer will not provide the appropriate documentation or research the record to confirm if the records truly belong to the applicant. I just read a story about a gun applicant who applied for a permit in Western PA and was denied the permit due to a faulty mental health check by the State Police. After research was conducted, the applicant was in the hospital for x-rays. Since there is no recourse, the applicant has sued PSP to remove the errant information. My example is not the same as criminal records but it does fall into the same category. Rather than automatically deny the applicant based on the criminal records merely on the fact a name match came back, spend a little extra time on digging into the information a little deeper. Or better yet, and this is probably the most simple way, ask the applicant what happened and ironically, the story may be explained and believable. I have preached and will continue to do so, companies are simply not educated enough with these laws and if they had a slight amount of knowledge, many of these problems would be avoided. I just look at thing as black and white and if companies took the time to investigate further and use a little common sense, the EEOC would not be knocking on your door.

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