New Limits on Background Checks Considered
By Jenna Greene
Precious Daniels is not what you’d call a hardened criminal. In 2009, she was arrested for blocking a doorway during a peaceful protest against a health insurer in Michigan — charges that were later dropped.
But Daniels claims that single arrest was enough to prevent her from getting a job with the US Census Bureau a few months later when the agency ran her name through a criminal records database.
About 92 million Americans — more than one in four adults —have some kind of criminal history, according to the US Department of Justice. Whether it was an arrest or a conviction, the charge was for a felony or misdemeanor, the verdict was guilty or innocent or the person was tried as a juvenile or an adult, the records can all show up in background-check databases that have proliferated on the Internet.
As employers increasingly use such background checks to screen prospective workers, the practice is creating a minefield of employment law issues — and has caught the attention of the US Equal Employment Opportunity Commission. On July 26, the EEOC held a packed public meeting in Washington focusing on how the use of background checks adversely affects minorities, since blacks and Hispanics are much more likely to have criminal histories.
The commissioners hinted that they plan to revise the EEOC’s 20-year-old background-check guidelines, a prospect that has alarmed the business community and triggered fears of burdensome new regulations.
Employers argue that they have a legitimate need to check out prospective workers to protect customers and co-workers and, indeed, that failing to do so could expose them to lawsuits for negligent hiring. According to a recent survey by the Society for Human Resource Management, 92% of employers conduct criminal-background checks some of the time, and 73% do so for every position.
“We have to strike a balance between having a safe workplace and giving someone a second chance,” said Buena Vista Lyons, a Dallas partner at Ford & Harrison who defends businesses in labor and employment matters. “Employers don’t want the EEOC to create rigid regulations.…If they come up with unrealistic standards, it’s not going to help anyone, and it’s not going to help the economy.”
The National Retail Federation, the National Restaurant Association and 11 other trade groups, which together claim to represent industries that account for more than 55 million jobs, sent a letter to the EEOC in late July urging the agency not to bar criminal background checks. “As long as there is workplace violence, fraud, theft, and a need to protect vulnerable populations, there will always be a need to review the criminal histories of applicants for certain positions,” the letter stated. “[W]e want the flexibility to conduct criminal background checks that are fair and appropriate.” About 92 million Americans — more than one in four adults — have some kind of criminal history, according to the US Department of Justice. Source: Atlanta Post, Jenna Greene
For the EEOC, the question is: What does fair and appropriate mean?
THE EEOC’S CONCERNS: The policy implications are profound. As EEOC Chairwoman Jacqueline Berrien noted at the meeting, it costs taxpayers $56 billion a year to keep people locked up. Ex-offenders who don’t find employment are three times more likely to return to prison than those who have jobs. “We recognize the importance to individuals of dismantling unnecessary roadblocks to employment, if and when arrest and conviction records are used inappropriately or unnecessarily,” Berrien said.
Of particular concern to the EEOC is the effect on minorities. One in 106 white men is currently incarcerated, compared with one in 36 Hispanic men and one in 15 African-American men, according to Amy Solomon, who is senior adviser to the assistant attorney general in the Department of Justice Office of Justice Programs.
“To me, there will be a disparate impact if [employers] are going to be using criminal histories,” said EEOC Commissioner Chai Feldblum, a Democrat, at the meeting. Under Title VII of the Civil Rights Act of 1964, an employment policy may be considered illegal if it has a discriminatory effect—even if the employer didn’t intend to discriminate. The counterweight for employers is to show that the policy is a business necessity and has a “manifest relationship” to the job in question.
Current EEOC guidelines make it clear that an absolute ban on hiring anyone with a criminal conviction is unacceptable. Instead, the guidelines call for employers to make individual assessments of ex-cons, taking into account the nature and gravity of the offense, the time passed since conviction and the job itself.
It’s not always an easy call. “Obviously you’re not going to hire a convicted embezzler to work as a bank teller or a child molester to work with children, but for every no-brainer like this, there are 10 combinations in a gray area,” said Travis Gemoets, a partner at Jeffer, Mangels, Butler & Mitchell in Los Angeles. “You have to look at what someone would do in the course and scope of employment.”
For example, Juan Cartagena, president and general counsel of Latino Justice, cited a pending case involving a young Latino man who worked for an Eckerd Pharmacy stocking shelves and was promoted to supervisor. But after the drug store chain was bought by Rite Aid Corp., he was fired because he had a prior drug conviction.
On one hand, a drug store refusing to employ someone with a drug conviction sounds logical. But Cartagena argues that the policy is too broad. “Large chains are not simple pharmacies,” he said —they’re more like variety stores, selling everything from lawn chairs to frozen pizza. These were the kinds of items the man handled — not drugs. “The pharmacy stocks their own shelves and accounts for their own inventory,” Cartagena said, arguing that the ban was needlessly restrictive.
EEOC Commissioner Stuart Ishimaru shared the concern. “One thing that’s been troubling to me is that so many employers use this in an overbroad fashion, so that it affects all their jobs, and all their applicants for jobs,” said Ishimaru, who is a Democrat. “Are they losing out on good employees who would do a fine job for them?”
CRITICISM OF GUIDELINES: One impetus for the EEOC to update its guidelines comes from the US Court of Appeals for the 3d Circuit. In a rare appellate decision on the use of criminal-background checks, the court in 2007 complained that the EEOC’s guidelines were too vague to be of much use.
The plaintiff in the case, Douglas El, claimed that the Southeastern Pennsyl vania Transportation Authority improperly disqualified job applicants because of prior convictions. El, who drove a bus, was fired when his employer learned of his 40-year-old conviction for second-degree murder.
The court expressed “reservations” about the transportation authority’s policy, but ruled against El because he didn’t hire an expert witness and couldn’t rebut the defense’s expert testimony that someone who committed a violent crime once is more likely to do so again, no matter how much time has passed.
The court complained that the EEOC’s guidelines don’t explain how employers are supposed to consider the nature and gravity of the offense in crafting any bright-line policy on criminal convictions, nor do they address whether an employer can decide that certain offenses (like murder) are serious enough to warrant a lifetime ban on being hired. “The EEOC’s guidelines are not entitled to great deference,” wrote Judge Thomas Ambro for the unanimous panel. “The policy document itself does not substantively analyze the statute.”
What new EEOC guidelines might look like is not clear, but one option discussed at the meeting was banning employers from asking about old convictions.
Solomon of the Justice Department cited a study on the “point of redemp tion” — when a person with a prior arrest becomes no more likely than members of the general population to commit another crime. The study found the point exists between three and eight years after release from jail, depending on the severity of the crime and the person’s age.
“Should [employers] just stop asking…at some point?” Ishimaru said. “There’s a time at which it’s no longer relevant statistically,” Solomon replied.
But George Washington University Law School professor Stephen Saltzburg argued that this would be of little practical use. When people are released from jail, he said, “They need jobs now. You can’t tell them to wait three or four years and if you have a clean record, great, because if they can’t get a job, they’re not going to have a clean record.”
Some lawyers fear the agency going forward may tell employers not to ask about criminal history in initial job applications (though they can ask later in the hiring process). Such “ban the box” rules are in place in the states of Massachusetts and Hawaii, plus cities such as Philadelphia.
It’s not a popular option with defense-side employment lawyers, who say it places an extra burden on employers. “They’re investing resources in interviewing people who would not be considered,” said Susan Lessack, a partner in the Berwyn, Pa., and Philadelphia offices of Pepper Hamilton.
At the same time, there are also thousands of federal and state restrictions barring employers from hiring people with certain convictions, especially in the financial services, child care, health care and transportation industries — restrictions that go all the way down to local rules for licensed barbers.
The EEOC guidelines do not have the force of law — they’re most useful for helping companies avoid being sued. Overall, litigation over criminal background checks has been scant, though there’s been a recent uptick in activity.
PENDING CASES: Lawyers are watching EEOC v. Freeman Cos., pending in US district court in Maryland, which challenges the use of criminal-background checks, as well as the use of credit checks, as a screening tool for new hires...
Another recent effort by the EEOC to challenge a company’s criminal background policy ended in humiliation for the agency, which was hit with $750,000 in attorney fees and court costs in March. After a three-year investigation, the EEOC in 2008 sued temporary staffing company Peoplemark Inc. in Michigan federal court for allegedly refusing to hire any person with a criminal record. The EEOC named 286 so-called victims of the policy —except it turned out that 22% of them had in fact been hired by the company despite their felony records. “The complaint turned out to be without foundation from the beginning,” wrote Magistrate Judge Hugh Brenneman Jr.
Peoplemark was represented by Barris, Sott, Denn & Driker in Detroit and Southern firm Baker, Donelson, Bearman, Caldwell & Berkowitz.
The biggest pending case — what plaintiffs’ lawyer Adam Klein, a partner at Outten & Golden in New York, calls “the megatsunami of background check cases” — is one against the federal government, challenging the hiring policies used for the 2010 census.
According to the complaint filed last year in US District Court for the Southern District of New York, the US Census Bureau, as a precondition of employment, required nearly all job applicants to provide within 30 days “official court documentation” for any and all arrests, regardless of whether a conviction resulted, the nature of the offense or when it took place. Among the applicants was Precious Daniels, who was told by her local court that there was no record of her arrest in the health care protest since the charges were dropped. Nonetheless, Daniels, who is black, was disqualified for a job with the census.
According to the complaint, the requirement eliminated 93% of applicants with criminal histories — about 700,000 people — who couldn’t find their records or submit them quickly enough, or who just gave up. For the few who did send them in, they found virtually all available positions had already been filled.
The plaintiffs allege that the policy violated Title VII. If the case is certified as a class, Klein sees potential for hundreds of millions of dollars in damages.
Still, the case is an anomaly. As Klein noted, it’s “very difficult as a private lawyer to litigate these cases.…The guidance becomes critical.” - New America Media