When Background Checks Violate Civil Rights


Civil rights activists have long railed against the "collateral consequences" that follow people with arrest or conviction records: statutes disqualifying them from housing, student loans and social services. One of the most impossible barriers, however, is many employers' refusal to hire people with criminal records even years after they've completed their sentences.

Despite 1987 and 1990 policy documents from the U.S. Equal Employment Opportunity Commission, explaining that the general exclusion of applicants based on arrest or conviction records violates Title VII of the Civil Rights Act (although employers are required to consider the seriousness of the offense, how it relates to the nature of the job and the time elapsed since the offense), companies routinely ignore the law. And as technology has made criminal records more accessible than ever, today more than 92 percent of employers use background checks in hiring decisions.


Experts say that the practice, which closes doors of opportunity to approximately 65 million U.S. adults who have some type of criminal record, has led to higher recidivism rates and has a disparate impact on African Americans and Latinos, who are arrested at a rate that is two to three times the proportion of the general population.

EEOC Takes a Historic Vote

On Wednesday the EEOC voted to update its enforcement guidance on how employers must handle job applicants with criminal records — its first major statement on the subject in more than 20 years. At a public meeting, commissioners acknowledged employee concerns about negligent-hiring liability, theft and workplace violence, but they also expressed the importance of striking a balance between workplace safety and workplace fairness. To that end, much of the revised guidance involves detailed explanations of the issues of disparate treatment and disparate impact.

On the disparate-treatment front, the guidance explains that there's a liability if, for example, an employee rejects an African-American applicant based on his criminal record but hires a similarly situated white applicant with a comparable criminal record. In terms of disparate impact, it clarifies that an employer may still be in violation of civil rights law if a seemingly neutral policy has the effect of screening out a Title VII-protected group.

The guidance also provides best practices that employers can follow, when doing criminal background checks, to avoid being in violation of civil rights law. One example is "individualized assessment" — informing the applicant about the background check and giving that person a chance to show how it won't affect his or her ability to do the job at hand.

"The individual's showing may include information that he was not correctly identified in the criminal record or that the record is otherwise inaccurate," said Carol Miaskoff, assistant legal counsel for Title VII, at the Wednesday meeting. The individualized assessment process may also reveal evidence of having done the same type of work post-conviction, or having undergone rehabilitation efforts such as education and training.

The Civil Rights Community Reacts

Before giving her "yea" vote, EEOC Commissioner Chai R. Feldblum clarified the scope of the new guidance, which does not establish drastic changes but builds on the commission's previous work. "What we are doing today is we're telling the courts, we're telling employers, we're telling employees how we got there," said Feldblum, who also shot down false concerns that the guidance would prohibit the use of criminal-background checks.


"We as the EEOC cannot do a lot with regard to a lot of the reasons that are causing [arrest and conviction] disparities," Feldblum continued. "What we can do is [enforce] the civil rights law passed by Congress, which said that neutral rules that have disparate impact must be job-related and consistent with business necessity. That's our job here as an agency."

In the hours following the vote, which passed 4-to-1, civil rights groups applauded the update.


"We commend the EEOC for its thoughtful, fair and thorough process in soliciting input on this issue of critical concern to millions of U.S. workers, especially workers of color who are hardest hit by the proliferation of criminal-background checks for employment," wrote the Leadership Conference on Civil and Human Rights in a letter to the EEOC, which held two hearings on the issue prior to their vote, getting the views of stakeholders.

"The Equal Opportunity Employment Commission's decision will help balance the playing field for job applicants with a criminal history," said NAACP President and CEO Benjamin Todd Jealous. "These guidelines will discourage employers from discriminating against applicants who have paid their debt to society."


Cynthia Gordy is The Root's senior political correspondent.