Mulling (Some Testy) Background-Check Testimony

The U.S. Commission on Civil Rights is still wading through testimony gathered Friday during its briefing to determine what impact the U.S. Equal Employment Opportunity Commission’s guidance on criminal-background checks is having or may have on the employment of black and Hispanic workers.

At this point, there doesn’t seem to be a precise timetable for an ensuing report and/or recommendation from the civil rights commission, or specific plan for the guidance, which the EEOC issued on April 25. But safe to say, one overriding theme of the Dec. 7 testimony – taken from 17 different individuals, representing employer groups, advocacy organizations, screening groups and providers, and employment sectors across the country – came in loud and clear: Businesses need to continue screening for criminal histories and they need some clarifications on portions of the guidance or they will remain, as one testified, “between a rock and a hard place.”

In the words of the USCCR, in its announcement about the Friday briefing, “the commission has initiated this investigation to determine whether the new EEOC guidance policy or other prohibitions or limitations on the use of criminal background checks results in lower job opportunities and reduced employment overall among minorities, including non-offenders.”

In other words, the commision’s concern – as raised over the past year by one of its commissioners, Peter Kirsanow – is that, for employers to either remove or not rely so heavily on the criminal-conviction question in a job application, as the EEOC has recommended, they might be creating a hiring system that, in turn, encourages discrimination of black and Hispanic males due to the sheer larger incarcertaion rates for these minorities.

As Rich Mellor – vice president of loss prevention for the Washington-based National Retail Federation and one of those testifying – told me in a follow-up phone call, “without that confirmation that an applicant does not have a criminal background,” an employer might be prone to try that much harder to hire a non-minority.

Even with such a confirmation, or disclosure of a criminal record and the chance to explain, minority job applicants are often hobbled by still-pervasive racial bias in hiring, according to testimony from Glenn E. Martin, vice president of development and public affairs for The Fortune Society, based in New York. He cited a Princeton University study of the low-wage labor market in New York that showed black and Latino applicants with clean backgrounds fared no better than white applicants just released from prison.

“Moreover,” Martin testified, “the positive outcomes for black applicants, when presenting evidence of a criminal record, were reduced by 57 percent.”

Mellor, in his testimony, raised an additional red flag about the transparency of this crucial criminal-background conversation. The EEOC guidelines, he said, “were enacted without giving retailers or other employers a chance for input,” according to an NRF release issued just after the briefing. “Hearings,” it says, quoting Mellor, “were held only with a ‘select group of predetermined stakeholders’ and actual text of the guidelines was released only the same morning that they were approved and implemented by the EEOC.”

The EEOC gave me this response today to the NRF’s release:

The NRF and other business groups communicated their views to the EEOC, and we considered them during the development of the guidance. Representatives of employers, individuals with criminal records, and other federal agencies testified at public EEOC meetings in November 2008 and July 2011.  The [EEOC] also received and reviewed approximately 300 written comments from members of the general public and stakeholder groups that responded to topics discussed during the July 2011 meeting.

The stakeholders that provided statements to express their interests and concerns include prominent organizations such as the Retail Industry Leaders Association, the U.S. Chamber of Commerce, the Society for Human Resource Management, the American Insurance Association, the National Association of Professional Background Screeners, the NAACP, Leadership Conference on Civil and Human Rights, the Public Defender Service for the District of Columbia, and the D.C. Prisoners’ Project, among others. Additionally, throughout the process of drafting the guidance, individual commissioners and staff met with representatives from various stakeholder groups such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project and the Equal Employment Advisory Council to obtain more focused feedback on discrete and complex issues.

Many of those organizations listed above had people testifying Friday before the USCCR as well, in addition to employment lawyers Jackson Lewis and Duane Morris, screening provider EmployeeScreenIQ, the U.S. Bureau of Justice Statistics and many more.

Duane Morris’ Jonathan Segal, who testified Friday on behalf of SHRM, told the commissioners that some state and federal laws require employers to conduct background checks for positions such as daycare providers and firefighters. EEOC guidance, he said, puts employers in the tenuous position of “losing their state license if they don’t comply with a state law mandating criminal background checks and risking a class-action lawsuit if they go forward with criminal background checks and base hiring on the results.”

In addition, he said, the guidance’s interpretation of disparate impact appears to make employers “vulnerable to an EEOC investigation any time they take an adverse employment action against individuals of certain races or national origins based on criminal background checks regardless of whether they have conducted a valid individualized assessment — seemingly making criminal convictions a new protected status.”

Rest assured I will be following this and will report developments as I catch wind of them. Pretty packed with pressing issues for employers, I’d say.

 

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