On June 20 the New York Times reported that the Equal Opportunity Employment Commission is stepping up efforts to go after employers who use criminal background checks to illegally discriminate against job applicants with criminal histories.
The long and short of it is that it is illegal for an employer to have a blanket ban on the hiring of anyone with a criminal history. Since the vast majority of employers use background checks as part of their hiring decisions, the E.E.O.C. wants to insure that an employer’s decision not to hire someone with a criminal history does not violate the applicant’s civil rights.
The issue turns on two questions: first, whether a hiring decision involves disparate treatment and, second, whether it involves disparate impact.
Disparate treatment, reports the Times, is fairly clear. It is illegal, for example, “to refuse to hire an African-American with a criminal conviction but hire a similarly situated white person with a comparable conviction.”
“Disparate impact,” says the Times, “is more complicated.” If an employer’s routine hiring practice disproportionately harms a legally protected racial or ethnic group, the practice is illegal even if there is no intention to racially discriminate.
An employer whose hiring policy is to deny employment to all applicants with a criminal history could well run afoul of the law. Why? Because the policy will have a disparately negative impact on blacks and Hispanics. Why? Because minorities are more likely than whites to be arrested and convicted. According to the Department of Justice, a Hispanic man is nearly three times as likely as a white man to be incarcerated, and an African-American man is nearly six times as likely.
This is not because minorities violate drug laws, for example, at a rate higher than whites. In fact, they do not. As the E.E.O.C. put it in 2008: “African-Americans and Hispanics were more likely than whites to be arrested, convicted or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for whites.”
As I have written before, Michelle Alexander, in her recent book The New Jim Crow, strongly affirms that predominantly black neighborhoods are specifically targeted by police for stop and frisk tactics, as well as traffic stops that would simply not be tolerated by the residents of a white neighborhood. The result is the incarceration of large numbers of African-Americans for relatively minor drug offenses.
When they are released and seek employment, many are routinely denied employment because of their criminal conviction. The E.E.O.C. is concerned that at least some of that is a violation of civil rights laws.
According to the Times, employers are concerned about the E.E.O.C.’s stepped-up efforts to enforce the civil rights laws when it comes to the hiring of people with a criminal history. But a lawyer quoted in the article suggests that employers need to have a dialogue with such applicants about the nature of the crime, the time elapsed since the crime and the nature of the job before determining that the applicant should not be hired.
The difficulty ex-cons experience in finding employment is one of the factors contributing to the high rates of recidivism. Employers have a right to be careful in their hiring procedures. Blanket bans on the hiring of people with a criminal history exceeds reasonable care. We need to see less of it.