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Written By ESR News Blog Editor Thomas Ahearn

The U.S. Census Bureau agreeing to pay a $15 million settlement to end a class action lawsuit for alleged discrimination against African American and Hispanic job applicants with arrest records during the criminal background check process when hiring temporary workers for the 2010 census “should also be a wake-up call for employers,” according to a background check expert quoted in an article on the Society for Human Resource Management (SHRM) website.

“The big takeaway for employers is that if even the U.S. government can get sued for the unfair use of criminal records, then private employers need to take this issue very seriously,” Attorney Lester Rosen, founder and CEO of Employment Screening Resources (ESR), a background check firm located in the San Francisco, CA area, told SHRM online editor/manager Roy Maurer in the article ‘Census Settles Class-Action Lawsuit over Criminal History Screens.’

“This should also be a wake-up call for employers to carefully differentiate between an arrest that did not result in a conviction, and an actual criminal conviction where there has been a factual finding about the underlying behavior,” added Rosen, author of ‘The Safe Hiring Manual’ and a frequent speaker on background check issues. “Trying to use an arrest only can be difficult and a number of states have laws that prohibit that,” he stated in the article by Maurer.

In April 2012, the Equal Employment Opportunity Commission (EEOC) released ‘Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964’ that warned employers they may violate Title VII with background check policies that have a disproportionate negative impact on protected categories such as race and national origin if they cannot demonstrate any business necessity.

“Even if an employer makes a reasonable judgment that a criminal record should exclude a particular individual, the EEOC is clear that each applicant should have a meaningful opportunity to be assessed individually on the basis of who they are, and not just be lumped into the broad category of being a criminal offender,” said Rosen, who added employers should also consider the nature and gravity of the crime, the nature of the job, and the age of the offense.

Rosen told Maurer that “employers need to be mindful of a need to demonstrate that the behavior underlying a criminal matter is demonstrably job-related or creates such a high risk that the employer has a business necessity not to hire the person.” Rosen also said that when any criminal record turns up in a background check – especially if that record is for a minor conviction, old, or is irrelevant to the job – that these types of records “need to be handled with extreme caution.”

As reported earlier by ESR News, the U.S. Census Bureau agreed to pay a $15 million settlement to end a lawsuit filed in April of 2010 that claimed job applicants for the 2010 Census with an arrest record for any offense found on a background check faced an arbitrary barrier to employment since the Census Bureau required these job applicants to produce “official court documentation” of the disposition of their arrests within 30 days to remain eligible for work.

The Census Discrimination Lawsuit website states the background check requirement from the Census Bureau for “official court documentation” caused 93 percent of the job applicants with an arrest record of almost any arrest – approximately 700,000 people – to be excluded from being hired for Census jobs. As a result, this requirement operated as a “no arrest or conviction history allowed” policy that is a violation of Title VII of the Civil Rights Act of 1964.

Rosen founded Employment Screening Resources (ESR), a leading global background check provider, in 1997. ESR is accredited by the National Association of Professional Background Screeners (NAPBS) and offers employers EEOC resources, blogs about the EEOC, and the whitepaper ‘Practical Steps Employers Can Take to Comply with EEOC Criminal Record Guidance.’ To learn more about ESR, call toll free 888.999.4474 or visit

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this web site is for educational purposes only.

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