That is how much the Fire Department of New York (FDNY) paid to settle a lawsuit filed by minority applicants. FDNY used firefighter entry examination which asked non-essential or inappropriate questions regarding the candidate’s background in order to contain the number of minorities who would qualify. Described as a ‘stubborn bastion of white male privilege’, the department which was 90% white in 2007 (when the complaint was lodged) is today 86% white.
The level of discussion, and intensity of emotion, regarding the use and interpretation of background checks, is increasing. This judgment against the FDNY was announced within a few weeks of the release by the U.S. Commission on Civil Rights (USCCR) of a study into the Equal Employment Opportunities Commission’s guidance regarding criminal background checks.
‘EEOC Measures to Stop Disparate Impact Deeply Flawed’
In December 2012, the USCCR launched an initiative to examine the EEOC’s criminal history checking guidance. Over fifteen months, the USCCR solicited comments from the public and employer groups. The report finds that the EEOC’s guidance in the matter is deeply flawed.
According to the USCCR, the EEOC guidance:
The Commission held that the burden of rehabilitating ex-offenders is not to be borne by private employers and that Title VII protections do not prohibit a negative decision based on a person’s criminal history. The EEOC, however, has refused to change any of its guidance in the matter. So, for now, employers will need to continue their tightrope walk as they choose between screening applicants for criminal backgrounds and facing lawsuits for negligent hiring.
New York’s Measures to Stop Unlawful Disqualification of Job Seekers
The New York Attorney General’s office has entered into an agreement with four of the largest background check agencies in America, to cease the practice of automatically rejecting any candidate that has a prior criminal conviction.
New York state law makes it illegal to automatically disqualify a candidate when a background check reveals a past criminal conviction. Such automatic disqualification is seen to be contributing to the disproportionately high rates of unemployment among minority communities. . For many of these candidates, their passage through teenage is a time of reckless bravado and overt defiance which leads them to commit actions – like taking drugs or driving under the influence – which they come to repent in leisure.
The Attorney General made it clear that such persons had paid their debt to society by undergoing the conviction and ‘deserve a fair shot at employment opportunities’ and a chance at a fresh start. New York’s Correction Law requires employers to look for mitigating factors in a person’s criminal history, like:
The law also prohibits any third party from aiding and abetting employers who attempt to violate the diktats of this law, such as asking staffing agencies and recruiters to automatically eliminate anyone whose background check contains a criminal record.
So, what is the bottom line here? Employers must simultaneously ensure that they are not hiring individuals who could cause harm to their company and its employees, while also respecting the rights of each candidate. The USCCR recognizes the plights of employers in maintaining this balancing act, while EEOC and some State agencies clearly give priority to ensuring the employability of those with criminal histories. The best guidance at this point appears to be to establish and follow consistent processes for criminal background checking. Establish policies that identify offenses that do not disqualify candidates, and criteria for weighing mitigating factors. Still unsure? Seek the services of an employment attorney.
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