The Dilemma of Criminal Background Screening

​Kenny Glover knows a lot about second chances—getting them and giving them.

After he was arrested for the first time at age 11 for breaking into an elementary school, his rap sheet grew fast and long, running the gamut from shoplifting and disorderly conduct to more-serious crimes like cocaine possession, assault and attempted robbery. His last offense—holding up a gift shop—earned him six years in a Virginia prison.

Glover got a break soon after his release in 2002 when a nonprofit hired him to do odd jobs. His boss soon pointed him to Miller & Long, a Maryland builder with a hiring program for people with criminal convictions. The company brought him on as a carpenter’s helper; before long, he caught the eye of top management and was offered a job in the human resources department as a recruiter.

Now in a position to give others the type of break he received, Glover frequently scouts for workers at halfway houses and at job fairs for people with criminal histories.

“Everyone deserves a second chance,” he says. “I figure if a guy can complete a rehabilitation program, he’s got a chance of succeeding with us. He’s shown me that he can start something and complete something.”

More than 650,000 people are released from prison every year, but few employers share Glover’s enthusiasm for hiring someone with a criminal past. In fact, most conduct pre-hire background checks, according to a 2012 Society for Human Resource Management (SHRM) survey, and checks that reveal a criminal history make many employers uncomfortable. About three-quarters of respondents said a nonviolent felony conviction would weigh heavily in a decision to turn away an applicant, and nearly all said they would be influenced by a violent felony conviction.

Many employers believe that hiring people with criminal convictions heightens the risk of workplace crime and increases exposure to a negligent hiring claim, SHRM’s research shows. According to Richard Mellor, a security expert with the National Retail Federation, high recidivism rates make employing individuals with a criminal background “high risk.” Mellor testified at the U.S. Commission on Civil Rightshearing on employer background checks last winter.

Few make this argument more passionately than Lucia Bone, whose sister, Cathy Sue Weaver, was raped and murdered in 2001. The assailant, a department store contractor who had cleaned the air ducts in Weaver’s home six months earlier, was a twice-convicted sex offender on parole. Bone has since launched a nonprofit to educate employers about the risks of hiring people with criminal histories, and she markets a tool for screening out such individuals from certain jobs. The organization is funded in part by the multimillion-dollar payout her family received from the department store.

“Everyone deserves a second chance, but not at the expense of innocents such as my sister,” she says.

In addition to the complicated ethical quandary of how to balance concerns about safety with fairness, employers now have another factor to consider: In some cases, turning down a candidate with a criminal  history can get them sued. In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance advising employers not to adopt blanket policies disqualifying candidates with criminal histories from employment. The agency is looking closely at whether employers that make hiring decisions based on criminal information unintentionally discriminate against black and Hispanic individuals. The roster of organizations investigated and sued—either by the EEOC or in private actions—is lengthening. (Employers can review the basics in Background Checks: What Employers Need to Know, an online publication jointly produced by the EEOC and the Federal Trade Commission.)

Meanwhile, an increasing number of states and localities are passing so-called “ban-the-box” measures, which prohibit employers from asking job seekers about their criminal backgrounds on applications.

The EEOC Speaks

Having a criminal background is not like having a disability. There are no federal civil rights laws protecting the labor-market treatment of a person with a criminal past. Unlike racial minorities, older workers and members of other protected groups, people with criminal histories who are turned down for a job have had limited legal options to challenge the decision.

But that is changing. The EEOC has long held that a hiring policy that treats black or Hispanic individuals with criminal backgrounds differently from their white counterparts is illegal discrimination—a principle known as “disparate treatment.” But the agency’s 2012 guidance caught many off guard by applying another legal principle called “disparate impact” to policies purporting to be neutral, such as a policy to not hire anyone with a criminal record.

Under the disparate-impact lens, it doesn’t matter if an employer applies a policy equally. If it harms members of a protected group more than others, it is illegal, unless the employer can prove that the policy is job-related and consistent with business necessity.

The EEOC’s updated guidance was based largely on statistics showing a vast difference in imprisonment rates for black and Hispanic men compared to whites. One out of 17 white men in the U.S. is expected to go to prison at some point in his lifetime, according to data compiled by the U.S. Department of Justice. The statistic climbs to 1 in 6 for Hispanic men and 1 in 3 for black men.

The story is largely the same for women. In 2011, black women were imprisoned at between two and three times the rate of white women, while Hispanic women went to jail up to three times more often.

Given the lopsided incarceration rates, policies that disqualify applicants with criminal histories may illegally discriminate against black and Hispanic job seekers, the EEOC warned.

The guidelines don’t prohibit criminal background checks. However, for a policy to pass legal muster, an employer must show “that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” That requires considering three factors laid out in the landmark 1975 case Green v. Missouri Pacific Railroad:

• The nature or gravity of the offense or conduct.
  
• The time elapsed since the conviction and/or completion of the sentence.
  
• The nature of the job sought or held.
  

In addition, employers are urged to give applicants the chance to explain the circumstances of their criminal records and provide information about whether they proved they could do the job and whether they went to rehab or got other training.

Enforcing the Guidance

The agency punctuated its message in 2013, a year after issuing the guidance, by suing national retailer Dolgencorp LLC d/b/a Dollar General and a U.S. branch of the German automaker BMW for disqualifying employees and job candidates

‘Ban-the-Box’ Efforts Gain Momentum

Walker speaks at a “Ban the Box” rally.

Richard Walker knew that the 14 months he’d served in jail in the mid-2000s disqualified him from jobs in his former career as a teacher. He just didn’t expect to have the door slammed in his face everywhere he went.

“If someone looked at my application and saw that I had a criminal conviction, that was the end of it,” he says. “They wouldn’t even give me the courtesy of a call back.”

With no job prospects, Walker went back to using cocaine within months of his release. But eventually he caught himself and checked into rehab.

Now sober for more than eight years, he heads Bridging the Gap in Virginia, a nonprofit that helps people with criminal backgrounds get jobs.

One of his goals is to get employers to stop asking about applicants’ criminal history, at least until the interview stage.

Legislative efforts with the same aim, known as “ban-the-box” initiatives, are cropping up around the country. (The name refers to the boxes on applications that ask about convictions.)

Ten states and dozens of localities now prohibit employers from asking about a candidate’s criminal background until after an interview. The states are California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico and Rhode Island.

because of their criminal backgrounds. In both instances, the companies violated Title VII of the Civil Rights Act of 1964 by using blanket disqualifiers, the EEOC alleged.

Dollar General had a policy of rescinding conditional job offers if a background check revealed certain convictions, regardless of whether the crime was related to the workers’ job duties, according to the EEOC. The policy resulted in 10 percent of black employees being discharged compared with 7 percent of whites. One employee who had been hired to work in a store in Waukegan, Ill., was fired a few days later when her background check came back showing a 6-year-old felony conviction for a controlled substance and a misdemeanor for possession of drug paraphernalia.

At BMW, 69 black warehouse workers in Spartanburg, S.C., lost their jobs in 2008 when the company began requiring workers to pass a criminal background check. Eighty percent of those who had failed the check were black, according to the complaint. One worker with 14 years of service was fired because of a 1990 misdemeanor assault conviction for which she paid a $137 fine.

Some companies investigated by the EEOC for discriminatory background check policies have agreed to make major changes. In 2012, Pepsi settled an EEOC charge by paying $3.13 million and providing training and job offers to 300 black applicants who were previously disqualified because of their criminal history.

Last year, transportation giant J.B. Hunt Transport Inc. agreed to settle an EEOC suit involving a job seeker who was turned down for a truck driver position because of an allegedly unrelated criminal record. As part of the settlement, Hunt agreed to review and revise its hiring and selection policies and to provide additional staff training.

On the other hand, the EEOC lost the two disputes that have already been tried in court. In its case against temporary staffing agency Peoplemark, the federal agency was unable to prove its initial claim that Peoplemark had a companywide policy of denying jobs to individuals with criminal convictions. And a federal judge dismissed the EEOC’s claim against Freeman, an events company, because the agency presented faulty data.

But these rulings don’t mean employers are off the hook.

“Many of the things the EEOC is recommending are good practices that many employers were already doing, or should have been,” says employment attorney Michael Cohen of Duane Morris LLP in Philadelphia.

Safety vs. Compliance

Controversy over the handling of criminal background data has been brewing since the EEOC released the guidance. Some employment experts say the agency has placed employers in a no-win position: If they turn down an applicant with a criminal history, they risk a civil rights violation; if they hire someone with a criminal past, they may be putting their businesses, employees and customers at risk.

“To the extent that it would inhibit or impede employers’ use of criminal background checks as a necessary and appropriate employment practice, the EEOC’s changes in its guidance and enforcement focus likely increase an employer’s exposure in negligent-hiring cases,” says Garen Dodge of the Jackson Lewis law firm in Reston, Va.

There are also concerns that the guidance puts employers at odds with laws and licensing rules that prohibit the hiring of people with criminal histories for certain types of jobs, including those dealing with government security and with vulnerable populations such as children and the elderly.

“There are going to be some crimes under some federal and state laws that are going to be automatic disqualifiers for some jobs,” Cohen says.

The EEOC guidance became a political football when the attorneys general (AGs) from nine states accused the agency of overreaching. In a July 2013 letter urging the agency to withdraw the Dollar General and BMW suits and rescind the 2012 guidance, the AGs said they were troubled “that your agency’s true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to former criminals.”

They also argued that the guidance will increase business costs by forcing employers to spend time and money evaluating applicants that they are unlikely to hire.

Separately, Texas Attorney General and gubernatorial candidate Greg Abbott filed a suit in federal court to have the guidelines enjoined. He accused the EEOC of interfering with the state’s right to impose blanket bans on hiring convicted felons in certain positions.

Best Practices

Confused about whether your organization’s background screening policies are appropriate? Here are some tips to help keep you out of court:

Review your employment applications. Depending on your location, you may be prohibited from asking job seekers about their criminal backgrounds on your applications. But even if you’re not, avoid questions that will screen out more candidates than intended. For example, asking applicants if they’ve been convicted of a crime would require candidates whose convictions were expunged or reversed to answer yes.

Consider only convictions, and weigh the timing of them. The fact that someone has been arrested or charged with a crime should not factor into your decision unless he or she was convicted. Moreover, social science research suggests that the risk that someone with a criminal conviction will commit another offense decreases over time. Consider the available evidence on recidivism rates before rejecting an applicant.

Limit what you know. Determine in advance the convictions you consider relevant for specific jobs and for how long after the offense occurred they are relevant. Provide these determinations to your background checkers with instruction to report only convictions that meet these criteria.

Check your checker. Ask where your background checker gets information. Not all sources are reliable or up-to-date. Some obtain information by purchasing bulk records but don’t update their databases. Vendors should use all available information to prevent a false-positive match. If your checker relies only on free or low-cost data from the Internet, find another vendor.

Make sure disqualifying policies are job-related and consistent with business necessity. Employers can prove this by considering the nature of the crime, the time since the criminal conduct occurred and the nature of the job in question. A person recently convicted of theft may not be suitable for a job at the cash register, but could work out fine as a carpenter.

Establish an assessment committee. Assign a panel rather than a single individual the responsibility for making hiring decisions about people with criminal histories.

Be fair. Give an individual who may be excluded by the screen an opportunity to show why he or she should not be ruled out.

Beef up training. Train HR and supervisors to use best hiring practices and to recognize hiring patterns that may have an adverse impact on a particular group.

Another Chance

One way that Kenny Glover gives back is by helping other people with criminal histories succeed. “Ex-offenders tend to harbor a lot of stuff,” he says. To help them work through that, he invites workers to attend casual, off-the-clock meetings to discuss money management, housing, child support or anything else that could distract them from their jobs. He shares his story and provides advice from the perspective of someone who has walked in their shoes.

“Our goal is to knock out all the excuses that keep them from not doing a good job,” he says. “We’re trying to keep our people employed.”

Rita Zeidner is a freelance writer in Arlington, Va.

Web Extras

• SHRM survey findings: Background Checking—The Use of Criminal Background Checks in Hiring Decisions
• HR Magazine article: Criminal Background
• SHRM article: Top 10 Background Screening Trends in 2014
• SHRM article: A New Look at Job Applicants with Criminal Records
• Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (U.S. Equal Employment Opportunity Commission)
• Press release:
  EEOC and FTC Offer Joint Tips on Use of Employment Background Checks (EEOC)
• Letter: A communication from the states of Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia regarding the U.S. Equal Employment Opportunity Commission’s position on bright-line criminal background screens in hiring
• Website: The Federal Bonding Program (U.S. Department of Labor)
• Webpage: Prisoners and Prisoner Re-Entry (U.S. Department of Justice)