Criminal background checks as part of applications for employment are neither new nor illegal. However, this issue has recently been in discussion mainly due to the ease with which employers can now use the internet to research employee backgrounds as well as the manner in which employers are using the results of these investigations. While employers are able to conduct checks and make hiring decisions based on what they find, broad screening out of candidates who appear to have criminal records can often be problematic. When background checks are applied without any consideration for an individual’s circumstances, this can sometimes create a discriminatory, albeit unintentionally so, result which disproportionately affects the poor, working-class and people of color.
This issue represents an awkward juncture of competing interests, particularly for our people, and the answer(s) are hardly straightforward. Consider that on one hand, the number of American job-seekers who have a criminal record is higher today than it was 10 years ago. Likewise, the number of Black and Latino males with criminal convictions who are seeking jobs has also risen. Once released from incarceration, many of these are individuals who have a sincere desire to rejoin society as independent wage-earning employees who are fighting for work among a competitive applicant pool. At the same time, business owners also have a legitimate interest in maintaining the security of their workplaces and keeping themselves, their employees, and their customers in a safe environment.
From a legal perspective, there are two distinct paths for how criminal background checks can go wrong for employers. The first is commonly referred to as "disparate treatment." This is when an employer purports to have one standard for applicants but applies it in a different way to candidates from certain groups. For example, when a business owner automatically screens out all Black applicants with a criminal history of theft or fraud and uses their criminal background as a justification for not hiring them, if they were to hire a White applicant with any of those same offenses, that is disparate treatment. While this does indeed happen, most employers are far more savvy in 2013. That leads to the second type of discrimination which can result from criminal background checks: disparate impact. Disparate impact is when there is a policy which has created an impact which disproportionately affects one particular group over others. From a legal standpoint, disparate impact is much more difficult to prove because it often deals with policies that are facially-neutral (i.e they do not make reference to any particular group, but are just applied unilaterally). Proving disparate impact also requires the use of statistical models to show that the impact is truly disproportionate. From where many of us sit, this isn’t rocket science. If Black and Latino males are already being discriminated against (compare New York City employment rates as an example) when job hunting and also have higher conviction and incarceration rates than members of other ethnic groups, who will be hit hardest by a broad based denial of applicants based on their criminal history? Why, yes, you guessed it….Black and Latino males! Consider further that in NYC, where private sector job growth has grown at a rate over four times the national average, Black males with no criminal backgrounds fared nearly the same only slightly better than those with them when seeking employment. In short, being Black is almost as much a strike against a job seeker than being a convicted criminal. Beyond deep.
Even more problematic is that many of the online databases used to conduct these background checks can often return negative results based on wrong or incomplete information because the sources aren’t official government agencies and usually are not double-checked for accuracy. Accordingly, employers run the risk of screening out otherwise qualified candidates in error based off of bad information.
So what is the solution for job seekers who have criminal records and are being repeatedly denied employment?
For starters, consider the position(s) that you are seeking. If you did 15 up North for intent to distribute, getting hired at a pharmacy is probably going to be out of the question. However, if you believe that you are being wrongfully discriminated against for other factors, or know of other people who with criminal records have been hired for positions, you may want to contact your local division of human rights or Equal Employment Opportunity office to file a claim against the employer. As for businesses that want to ensure that their workplaces are safe and interests protected, take care to consider factors like the nature of the crime, length of time between the crime and application, and the nature of the job applied for when doing the initial screening. For additional protection, for those applications that are screened out of the process, an individualized review might help you catch applicants that are actually qualified but may have been screened out erroneously and who might otherwise make good employees. Any denial of a person based on a criminal record should come with consideration of what job they applied for. For example, a person with a history of DUI may not be suitable to work in an industry where they would have unbridled access to cars; but that conviction shouldn’t in itself stop them from being a bank teller.
It’s hard enough for many of us to secure employment as is, just based on the color of our skin. It’s important that we do what we can to ensure that all types of discrimination in job hunting does not continue.
Charles F. Coleman Jr. is a former King's County (Brooklyn, NY) prosecutor and a federal trial attorney specializing in employment law and civil rights. Follow him on Twitter: @CFColemanJr