A letter from three members of the U.S. Commission on Civil Rights (USCCR) to the Equal Employment Opportunity Commission (EEOC) suggests a recent hearing held by the EEOC examining arrest and conviction records as a hiring barrier in which some panelists sought to limit – or in some cases eliminate – the ability of employers to perform criminal background checks on job applicants during the hiring process fails to consider recent studies that suggest the use of criminal background checks does not automatically lead to lower hiring rates of minorities, according to the article ‘Will restricting criminal background checks actually increase minority unemployment?’ from The Daily Caller.

In their letter to the EEOC, Civil Rights Commissioners Peter Kirsanow, Gail Heriot and Todd Gaziano cited a 2006 research paper – “Perceived Criminality, Criminal Background Checks and the Racial Hiring Practices of Employers” by Harry J. Holzer, Steven Raphael, and Michael Stoll – that analyzed the effect of criminal background checks on the hiring of African Americans and found that employers using criminal background checks were more likely to hire African American workers, especially men, than those without that information. Another study conducted by Stoll – ‘Ex-Offenders, Criminal Background Checks, and Racial Consequences in the Labor Market’ –  found that employers were likely to discriminate using age or race as indicators of past activities in the absence of performing criminal background checks.

As reported in the ESR News blog ‘Equal Employment Opportunity Commission Holds Meeting on Use of Criminal Records for Employment Screening Background Checks,’ the EEOC – the agency of the United States Government that enforces federal laws prohibiting employment discrimination – held a meeting in July 2011 focusing on the use of criminal background checks by employers. The meeting sought to strike a balance between workplace fairness and workplace safety, identify and highlight ways in which arrest and conviction records have been used appropriately and current legal standards, and ensure employment practices were fair and non-discriminatory. Since African Americans and Latinos have higher arrest and conviction rates than whites, the EEOC may consider restricting criminal background checks of job applicants by employers to lower minority unemployment and reduce discrimination, claiming that criminal background checks unfairly create hiring barriers for these protected classes. More information about this meeting is at: http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm.

In another response to this meeting, Attorney and safe hiring expert Lester Rosen, CEO of background check company Employment Screening Resources (ESR) and author of ‘The Safe Hiring Manual,’ submitted a letter for public comment to the EEOC. In reviewing comments and testimony from the hearing, Rosen wrote that the rights of ex-offenders to a second chance must be balanced with the rights of employees to have a safe workplace: “Of course, the pre-employment screening industry recognizes that unless ex-offenders receive a second chance, we stand the risk as a society of creating a class of permanently unemployed and employable individuals.  The results are not only devastating to the ex-offenders and their families, but it also places a substantial strain on societal resources. However, it is just as important to understand that innocent people have the right to be safe in their workplaces and everyday lives.”

Rosen also wrote that the use of criminal records is a difficult issue because it involves important American values that can seem to conflict. “On one hand, we value public safety and a safe workspace with honest and qualified employees. All Americans have a right to be safe and secure in their workplace.  On the other hand, as a society we believe in second chances, and that a person’s past should not hold him or her back forever, particularly for more minor offenses. The issue is how to draw lines that both protect innocent people and, at the same time, does not burden the taxpayers by creating a permanent class of unemployed people. Unless an ex-offender can get a job, they cannot become a taxpaying and law abiding citizen and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance.”

In seeking to balance these competing interests, Rosen hoped that the EEOC will recognize that there are some “real world” issues that need to be considered that include:

  • Employers face significant risk if a person that is dangerous, unfit, unqualified or dishonest is hired.
  • A professional background screening firm – also known as a Consumer Reporting Agency or CRA – operating under the federal Fair Credit Reporting Act (FCRA) is an entirely different industry than the cheap and instant online database searches that can result in inaccurate data. A CRA preforms screenings under the strict standards of the FCRA based upon the applicant’s written consent, as opposed to data aggregators that sell data to anyone with a credit card.
  • Background screening firms are NOT the employment police, but professionals that gather relevant information so employers can make intelligent decisions. Background check reports provided by a Consumer Reporting Agency protects both employers and job applicants by providing employers with reports with much greater accuracy that filter out information that cannot be used,  and providing job applicants with an immediate avenue to contest any information in the report.
  • The background screening industry as a whole has been the primary reason why employers have become aware of the EEOC position on the overly board or automatic use of criminal records, since background screening firms deal with a high percentage of U.S. employers and typically include client education on how to properly consider the use of criminal records.
  • The issue of inaccurate records comes primarily from the data aggregator firms. A simple solution is to require any employer to only utilize information that has been confirmed as accurate and up to date from a primary source, such as a courthouse search.
  • Over 140 background screening firms have joined an industry group called “ConcernedCRAs” (http://www.concernedcras.com/) that opposes the use of databases provided by data aggregators for employment purposes, without first reconfirming that the information is currently complete, accurate and up-to-date.

Rosen summarized that the EEOC should undertake a fair and well-reasoned evaluation of all the issues and how its rulemaking in this area would impact all stakeholders: “It is certainly critically important to our society that everyone have a second chance. However, citizens also have a right to be free of violence and fraud in their everyday dealing, either as a member of the public, an employee or employer.  In reaching these difficult decisions, it is critical that the EEOC have a full understanding of all of the facts that surround background checks and criminal records.”

The letter from Les Rosen to the EEOC is available at the ‘Equal Employment Opportunity Commission (EEOC) and the Use of Criminal Records for Employment’ page on the ESR website at http://www.esrcheck.com/EEOC-and-the-Use-of-Criminal-Records-for-Employment.php.  For information about background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) literally wrote the book on background screening with “The Safe Hiring Manual” by ESR founder and CEO Lester Rosen. ESR streamlines the screening process and reduces administrative overhead though its proprietary technology solutions.  ESR is accredited by The National Association of Professional Background Screeners (NAPBS®), a distinction held by less than 2 percent of all screening firms. This important recognition was achieved by successfully passing a third party audit demonstrating compliance with the NAPBS Background Screening Agency Accreditation Program. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about ESR, visit http://www.ESRcheck.com.

http://cdia.files.cms-plus.com/PDFs/US%20Commission%20on%20Civil%20Rights.pdf.                            http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm.