U.S. Commission on Civil Rights Announces Briefing on Criminal Background Checks and EEOC Guidance

By Mary Poquette, Chief Compliance and Security Officer

On December 7, 2012, the United States Commission on Civil Rights will hold a briefing to discuss the impact of criminal background checks and the EEOC’s conviction records policy on employment of black and Hispanic employees. The briefing will take place at the new headquarters offices of the Commission at (1331 Pennsylvania Ave. NW, Suite 1150, Washington, DC 20425) at 9:00am eastern. Interested members of the public are invited to attend.

According to the announcement:

The Commission has initiated this investigation to determine whether the new EEOC Guidance policy or other prohibitions or limitations on the use of criminal background checks encourage or discourage re-entry by former offenders into the job market. From an employer’s perspective, the use of criminal history checks may help ensure a safe environment for customers and employees, reduce legal liability for negligent hiring, reduce or prevent theft, embezzlement or other criminal activity, comply with state laws requiring background checks, and assess overall applicant trustworthiness. From the EEOC’s point of view, the increased use of criminal background checks indicates possible disparate impact discrimination under Title VII of the Civil Rights Act.

Previously, in August 2011, three members* of the US Commission on Civil Rights sent a comment letter to the EEOC addressing the EEOC’s activity at the time to examine the use of arrest and conviction records as a hiring barrier. The comment letter cited two scholarly papers that dissected whether the assumptions that regulating the use of arrest and criminal records would lead to increased employment of minority candidates were actually accurate. According to the comment letter, “[t]hese papers indicate that employers who use criminal background checks may be less likely to hire African Americans because they are using race, age, or other characteristics as proxies for past criminal history” and “[e]mployer use of criminal background checks may thus actually benefit African-American job applicants without criminal records.”

One scholarly paper cited in the comment letter from the University of Chicago Legal Forum,[1] found that employers who conducted background checks hired more African American applicants than those who did not – twelve percent of recent hires where a background check was conducted were African Americans whereas only three percent of African Americans were hired in the absence of a background check.

The upcoming hearing will prove to be an interesting forum at the very least given the potential for these polarizing viewpoints and opinions regarding the criminal background check process and its impact on applicants. With the EEOC announcing record breaking settlement figures – including actions against employers for their use of background checks in the hiring process – and the potential differing opinion by the US Commission on Human Rights, employers should stay closely tuned in as the latest chapter in background screening history unfolds.

*Update: The original post indicated the comment letter was sent on behalf of the entire US Commission on Civil Rights. This post has been corrected to reflect that the comment letter was sent on behalf of three Commission members only. The three members, Peter Kirsanow, Gail Heriot and Todd Gaziano sent the letter in their individual capacities, not on behalf of the Commission.

[1] Michael Stoll, Ex-Offenders, Criminal Background Checks, and Racial Consequences in the Labor Market, University of Chicago Legal Forum, (2009).