Avoid Discrimination through Disparate Impact of Background Checks | DCR Workforce Blog

Avoid Discrimination through Disparate Impact of Background Checks

$98 million!

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:

  • Misapplies the disparate impact theory – by failing to differentiate between arrests and convictions, and non-offenders and offenders
  • Is too difficult for a most companies and individuals to understand and implement effectively
  • Individualizes assessment, making it easier to bring disparate treatment into the hiring process
  • Discourages the use of criminal background checks, leaving employers and employees to fall victim to criminal behaviors and also exposing employers to negligent hiring lawsuits
  • Does not encourage increased employment opportunities for its purported beneficiaries; mainly African-American and Latino men.

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 nature and gravity of the conviction
  • Its bearing on the specific responsibilities of the job being sought
  • Time elapsed since the conviction
  • The applicant’s age at the time of conviction
  • Evidence of rehabilitation

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.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.