5 Solutions to Allay Employment Background Check Discrimination Concerns

Nick Fishman

I’ve spent a great deal of time over the last few months thinking about where the Equal Employment Opportunity Commission went awry with their stance on employers’ use of criminal background checks and how the very real concern of discrimination could be addressed. There certainly has been no shortage of events over the summer which have helped to shape my viewpoints from the Trayvon Martin case (where I think race caused prosecutors to lose because they overcharged based on public sentiment), to a Maryland judge’s embarrassing dismissal of the EEOC’s case against Freeman Companies, to Eric Holder’s recent policy change on sentencing guidelines.

I always ask our employees to bring me solutions not problems, so I decided to take my own advice and focus on what I think can be done to remedy the real issue of eliminating race discrimination in the criminal justice system (not in the employer community) and getting those with criminal records back to work. Here are my solutions:

1. Focus on the Root Problem

The EEOC has chosen to direct its ire towards employers who use background checks to protect their employees, their customers and their businesses because they say those checks could have a disparate impact on minorities.  They argue that because minorities are arrested, charged, prosecuted and convicted at a higher rate than whites that this can result in discrimination.

Rather than punish employers for taking reasonable and responsible actions, why not go to the root problem; the disparate treatment? If minorities are indeed treated unfairly by our criminal justice system, it would seem to me that we would be much better served eradicating this form of overt discrimination. If I were to guess, the EEOC determined that employers were an easy target- the low hanging fruit. Going after the criminal justice system doesn’t fall under the mission of the EEOC but it would seem to me that is the root cause.

2. Invest in Rehabilitation

One idea that has been circulating among those in favor of employment background checks is the expansion of rehabilitation certificate programs. There are only a handful of these programs out there (the state of Illinois for example), and we’ve found that they are woefully underutilized. Here’s how they are supposed to work. The person convicted of a crime can petition the court for a certificate of rehabilitation after they have achieved certain criteria (i.e. no additional convictions over a pre-determined period of time, no positive drug tests, completion of community service, etc.). Once granted, the individual can share the certificate with prospective employers. At that point employers would know that this person has truly taken steps to change their life and presents less risk to the organization.

3. Insulate Employers from Negligent Hiring Claims

One of the biggest concerns employers have about hiring those with convictions is the possibility that they might someday be sitting in court for a negligent hiring claim brought as a result of the prospective employee’s behavior. So let’s give employers some insulation from these claims. If an employer conducts a background check and is aware of past criminal activity, don’t punish them for taking a chance. The state of Texas just passed HB1188 which does just that. Remove this obstacle and I think employers would be much more willing to hire those with convictions.

4. Review Sentencing Guidelines

I had actually been thinking about this before U.S. Attorney General Eric Holder announced the justice department’s shift on mandatory minimums and other unfair sentencing guidelines. For instance, in 2010 Congress passed a law that would ease the disparity between the penalties for possessing or distributing crack (considered an urban drug) vs. powder cocaine (considered a recreational drug). The Fair Sentencing Act changed the 100-to-1 disparity between minimum sentences for crack and powder cocaine to 18 to 1.That’s still a big difference. Especially when you read between the lines of the definitions. Urban Drug=Inexpensive Minority Consumption Drug v. Recreational Drug=Party Drug Consumed by Whites and Blacks Alike. We should target this and other disparate sentencing standards to level the playing field. Obviously, the more time someone serves in prison the less employable they become and the more likely they are to re-offend.

5. Embrace Background Checks as a Way to Combat Discrimination

The Wall Street Journal’s Jason Riley highlighted a 2006 study by Harry Holzer of Georgetown which indicated that if employers weren’t able to utilize background check they would revert to their own personal biases in making their hiring decisions. Check out this excerpt from Riley’s editorial:

“Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers,” found that “employers that check criminal backgrounds are in general more likely to hire African Americans,” according to Harry Holzer of Georgetown University and his two co-authors. “[T]he adverse consequence of employer-initiated background checks on the likelihood of hiring African Americans is more than offset by the positive effect of eliminating statistical discrimination.” These researchers surmise that employers who can screen for prison records are less likely to rely on prejudice when hiring. Blacks aren’t the only beneficiaries. Analyzing “employer willingness to hire other stigmatized groups of workers (such as workers with gaps in their employment history),” they found the same pattern. The results, they wrote, “suggest that in the absence of background checks, employers use race, gaps in employment history, and other perceived correlates of criminal activity to assess the likelihood of an applicant’s previous felony convictions and factor such assessments into the hiring decision.”

Rome wasn’t built in a day and I don’t think anyone believes that adopting these measures will have an immediate impact. But if you want to target the root causes of the problem and support initiatives to get people back to work, here’s your solution. Punishing employers for their use of employment background checks doesn’t help anyone.








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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