2010 Trend on Increased focus on whether credit reports and criminal records are discriminatory

By Les Rosen, Employment Screening Resources

2010 Trends in Screening–Trend One:

Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010. ESR has identified new trends that are starting to make a difference, as well as old trends that have evolved as the screening industry matures and as plaintiff’s attorneys, including class action lawyers, have started to focus on background checks. 

This is the first of the ten trends ESR will be tracking in 2010.  The ten trends will be released over the next three weeks:

  1. Increased focus on whether credit reports and criminal records are discriminatory: When the EEOC filed a lawsuit against a national employer in October 2009 alleging that credit reports and criminal records were being used to discriminate against members of protected groups, it did not come as much of a surprise to industry watchers.  (See ESR blog at: http://www.esrcheck.com/wordpress/1057/new-eeoc-lawsuit-for-discrimination-based-on-credit-report-and-criminal-records.)  There has been a steady drumbeat of concern about credit reports and criminal records.  Credit reports have come under increasing criticism as reported in the media for being inherently unfair and potentially discriminatory. California, for example, has twice passed laws that would have severely limited credit reports (although both were vetoed by the governor).  A bill has been introduced in Congress to amend the federal Fair Credit Reporting Act (FCRA) to outright prohibit the use of credit reports for employment, and it has 46 co-sponsors in the House of Representatives. In 2009, Hawaii passed a bill limiting credit reports.  (See past ESR blogs on the pros and cons of credit reports.) The use of criminal records is also getting scrutinized. New York in 2009 passed new laws to ensure that employers were not automatically rejecting applicants with criminal records without considering the individual on his/her merits.  In recent years, the Conference of Mayors has addressed the issue of criminal records baring ex-offenders from getting a second chance, and the State of Minnesota joined a number of large cities in adopting a “ban the box” approach to governmental employment , meaning that questions about a past criminal record are not requested initially on an employment application in order not to deter ex-offenders form even applying. On one hand, without exercising due diligence, firms can sued for negligent hiring, suffer financial loss, and/or put public safety at risk if “red flags” are not located. On the other hand, critics are concerned that with undue emphasis on credit reports or criminal records, people are being shut out of the workforce.  For instance, unless ex-offenders can get a job, there is a high likelihood of recidivism which means more taxpayer dollars are being spent on prisons instead of schools or hospitals.  The bottom-line is that screening occurs at the intersection between concerns over security and safety on one hand, and privacy and fairness on the other, and society is constantly defining the boundaries. Of course, it is interesting to note that nearly every time a legislator objects because there is too much screening, there is often a call by some other elected official for even more screening after it is revealed that some crime or offenses occurred where an inappropriate applicant was hired without a sufficient background check.  A listing of proposed legislation related to screening shows that legislators are both calling for increased privacy and protections for consumers at the same time they are introducing bills to increase background check requirements.  This underscores the fact the screening occurs at the intersection where privacy and security concerns meet, and the lines are constantly being tested. One area where employers need to review their practices is on using automated scoring matrixes where a candidate is given a green, orange, or red light.  That sort of automation where an individual is judged entirety by his/her membership in a particular category instead of his/her personal abilities is precisely the type of process that is likely to get some unwarranted attention in the courts as a discriminatory practice. This practice presents dangers to large employers and small and medium enterprises certainly should not be engaging in automated decision making based on background checks.