Employee Background Checks: Common Sense or Ulterior Motive?

If you’ve applied for a job, you’ve almost certainly been asked about past criminal convictions – whether you have any, and if you do, some details of the incident.

If you have no criminal record, you probably simply answered “no” and didn’t give it a second thought. But what about people who do have some criminal history? Regardless of the nature of the offense(s), and how long ago they occurred, almost all employers look down on a prospective employee who has a criminal record.

And in addition to just asking about employee’s past, employers are also conducting extensive background checks, looking at an employee’s criminal history, as well as their credit reports. All of this information is used to evaluate an employee’s character, trustworthiness, and fitness for a particular job. In general, there’s nothing wrong with taking some effort to find out essential information about a job applicant that the applicant might be reluctant to reveal.

But what about employment restrictions which are valid on their face, but result in racial or gender discrimination? The Wall Street Journal Law Blog discusses an AP story reporting that some people who have found employment difficult because of their (in some cases, very minor) criminal histories are challenging some of these employment practices as illegal.

First, to be clear, nobody is arguing that employers can’t conduct criminal background checks. Obviously, if a bank finds that a job applicant has a recent history of embezzlement, or a day care center finds that an applicant has been convicted of child abuse, those employers have an obvious interest in keeping such people out.

However, what about a person applying for a job as, say, a cashier, and they have a DUI conviction from several years ago? Obviously, a blanket policy against hiring anyone with any criminal conviction could easily shut a large portion of the population out of gainful employment, perhaps permanently.

Considering that the U.S., and many states, has fairly strong laws against other forms of discrimination in employment, it’s possible that we’re looking at a major gap in anti-discrimination law.

It’s been suggested that some extremely strict background checks can have a disparate impact on racial minorities. Now, an employment policy that bars, or strictly limits, the hiring of anyone convicted of a crime, or anyone who has been sued or filed for bankruptcy, or anyone who has bad credit, is facially neutral with respect to race. This means that, simply reading the policy, it’s impossible to see any discriminatory intent.

However, many such policies, when actually put into practice, tend to have an extremely disproportionate impact on racial minorities. If this impact can be shown, the policy can, in theory, result in the same legal consequences for the employer as overt racial discrimination.

And the Equal Employment Opportunity Commission, the agency tasked with enforcing federal anti-discrimination laws, has taken notice. The EEOC has issued statements saying that such conduct could, in some cases, run afoul of federal law.

The EEOC has even filed a class-action lawsuit against a company alleging that it engaged in racial discrimination (against Hispanics and African Americans) and sex discrimination (against men) when it ran criminal background and credit checks on all of its prospective hires. Of course, some bloggers are already screaming that this is yet another conspiracy by the Obama administration to destroy capitalism (or something).

However, we all know that a criminal conviction, even if it’s for a relatively “minor” offense, can alter the course of a person’s life. It’s very easy to say to someone who can’t get a job because of a criminal conviction “well, you should have thought of that before you decided to break the law,” but anyone who said that would have to ignore the obvious fact that it’s almost always more complicated than that. After all, it’s hard to seriously claim that a grown adult is the same person they were in their youth.

Furthermore, not every criminal act is equally culpable, from a moral standpoint. And, finally, there’s the pesky fact that sometimes (though, admittedly, not terribly often) people are wrongfully convicted of crimes, and never exonerated.

All of these facts should lead one to the conclusion that maybe companies should employ a more common-sense approach when considering a person’s criminal/financial background when deciding whether to hire them.