Background checks have been much discussed in the last few weeks, primarily in the context of gun-control proposals. But it appears some background checks are favored by bien pensants whereas others are not — the latter being those conducted by employers on applicants for employment.
Last April, the EEOC issued a new policy guidance regarding businesses’ use of criminal background checks in hiring. The EEOC doesn’t have statutory authority to issue binding rules, but their policy guidances perform a similar function. Policy guidances tell businesses what practices the EEOC considers suspect under Title VII and, therefore, what practices will trigger a costly EEOC investigation. Thus, businesses are well advised to adhere to the guidances.
The purpose of the EEOC’s criminal-background-check guidance is to discourage businesses from refusing to hire ex-offenders. However laudable and necessary it may be to reduce unemployment among this cohort, ex-offenders are not a protected class under Title VII, so the EEOC doesn’t have express statutory authority to investigate and charge businesses for discriminating against ex-offenders. The EEOC gets around this impediment by invoking disparate-impact theory. The reasoning is as follows: Blacks and Hispanics are more likely to be incarcerated than whites. Therefore, even a facially neutral policy against hiring ex-offenders will screen out more blacks and Hispanics than whites. Consequently, the agency argues, this may constitute evidence of unlawful racial discrimination in violation of Title VII, giving the EEOC the authority to investigate and sue offending employers.
Unfortunately, the EEOC lacks data on which to base disparate-impact theory in this situation. In the seminal disparate-impact case, Griggs v. Duke Power, the Supreme Court found that disparate-impact discrimination occurred where two job requirements (having a high-school diploma and passing an intelligence test) had no bearing upon whether an individual could adequately perform the job.
Criminal convictions, however, can provide information about an applicant that goes beyond whether the person has the skills to perform certain functions of the job. A criminal conviction may provide insights into an applicant’s trustworthiness, reliability, respect for authority, and risk to others. If evidence shows that ex-offenders and non-offenders differ in their job performance, the use of disparate-impact theory becomes suspect.
At a hearing last month before the U.S.Commission on Civil Rights about the EEOC’s background-check guidance, the EEOC’s representative acknowledged that the agency has no studies regarding the job performances of ex-offenders compared to non-offenders There’s no statistical evidence to support or disprove the EEOC’s theory that the use of criminal background checks unlawfully disadvantages one group (ex-offenders) that would otherwise perform just as well as another group (non-offenders). In other words, the EEOC’s guidance is based on a hunch.
Despite the profound effect the guidance has on the nation’s employers, the EEOC hurriedly implemented the guidance without giving the public an adequate opportunity to comment on it. Although the EEOC did hold a hearing about the use of criminal background checks in employment, only nine witnesses were invited to testify, and of those nine, eight supported efforts to reduce the use of criminal background checks, whereas only one witness represented the interests of businesses that would be adversely affected by greater restrictions on the use of such checks. There was, obviously, little doubt about the outcome.
The EEOC’s process didn’t have to be so lopsided. In contrast, at last month’s hearing reviewing the guidance before the U.S. Commission on Civil Rights, 17 witnesses testified, including representatives of several national employer associations, major security firms, and victims’ advocacy groups, as well as ex-offenders’ advocacy groups. Not one of the employers or employer associations had been invited to testify before the EEOC.
The witnesses cited numerous problems with the guidance, not the least of which is the fact that the guidance provides no safe harbors for employers attempting to comply with conflicting state laws. Many states reasonably bar individuals convicted of certain crimes from working in particular jobs (e.g., a convicted pedophile may not work in a day-care center, etc). Yet the EEOC specifically maintains that compliance with state law is not a defense to an EEOC charge under the guidance. The EEOC will honor a state-law exemption only if the EEOC determines that the state law complies with the EEOC guidance. So a small businessman with meager resources is in the unenviable position of 1) determining whether a state law complies with the guidance, and if he’s unsure whether the law complies 2) deciding whether it’s better to be put out of business by the state or the EEOC.
That’s no way to run a railroad — or nursing home, drug store, security-guard company, doctor’s office . . .
— Peter Kirsanow, a member of the U.S.Commission on Civil Rights and former member of the National Labor Relations Board, practices and teaches labor and employment law in Cleveland, Ohio. Carissa Mulder is a special assistant on the commission and writes frequently on civil-rights issues. These comments do not necessarily represent the position of the commission.