A second blog post will follow about some new work being done by the U.S. Commission on Civil Rights (USCCR) that could impact employment screening, but for now, let’s look back in time before moving forward.
Following the EEOC’s adoption of its controversial and litigated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, the USCCR stepped in to the fray by holding a briefing on Dec. 7, 2012 “on the impact of criminal background checks and the EEOC’s conviction records policy on employment of black and Hispanic workers.” CDIA submitted a comment for the USCCR’s briefing record. An important written statement was also filed by Dr. Jeff Sedgwick.
It took over a year from Pearl Harbor Day 2012 to Valentine’s Day 2014 for the USCCR to issue its 355-page report, Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy. The report summarized the oral testimony from the briefing and the nearly 300 public comments received regarding the EEOC’s criminal background guidance. There were comments from 83 from ex-offenders supporting the EEOC guidance and comments from 121 employer-related groups objecting to the additional burdens placed on employers by the EEOC guidance. The USCCR also received comments from two EEOC commissioners, Victoria Lipnic and Chai Feldblum.
The report largely broke no new policy ground and in most cases served as a simple repeat of the issues involved. There was a strongly worded statement from Commissioner Peter N. Kirsanow, Vice Chair Abigail Thernstrom, and Commissioner Todd Gaziano who called the EEOC’s Guidance “deeply flawed.” The three commissioners went on to write that
The foundation of the Guidance is flawed, because it misapplies disparate impact theory by failing to appropriately compare non-offenders to offenders, and by conflating arrestees with convicts. The Guidance is too difficult for a layperson to effectively apply to their hiring process, and the individualized assessment reintroduces the prospect of disparate treatment into the hiring process. In discouraging the use of criminal background checks through the complexity of the Guidance and the fear that a little knowledge can be a dangerous thing when your friendly neighborhood EEOC investigator comes calling, the EEOC leaves employers exposed to negligent hiring lawsuits. Perhaps more importantly, discouraging the use of criminal background checks leaves Americans more likely to fall victim to the behavior that leads to negligent hiring lawsuits. And unfortunately, the Guidance is unlikely to increase employment among African-American men, who are the primary purported beneficiaries
The swiping continued at the end of the statement from Kirsanow, Thernstrom, and Gaziano:
The EEOC and various groups representing ex-offenders will argue that a criminal record should not be a life-long scarlet letter. If ex-offenders cannot find employment, they are more likely to reoffend. Fair enough. But the burden of rehabilitation shouldn’t fall on private companies… Despite the Guidance’s invocation of disparate impact theory, the main goal is to increase the employment of ex-offenders. Title VII was definitely not enacted to prohibit discrimination on the basis of criminal history. If the country wants to shift the cost of criminal rehabilitation onto private employers, Congress should pass a statute prohibiting discrimination on the basis of criminal history. Otherwise, this is outside the EEOC’s purview.
Commissioner Kirsanow wrote an article in 2013 in the National Review where he and co-author Carrissa Mulder said that
There’s no statistical evidence to support or disprove the EEOC’s theory that the use of criminal background checks unlawfully disadvantages one group (ex-offenders) that would otherwise perform just as well as another group (non-offenders). In other words, the EEOC’s guidance is based on a hunch.
In a letter to the EEOC, USCCR Commissioners Kirsanow and Gail Heriot pointed to research from economists Harry Holzer and Stephen Rafael, and public policy professor Michael Stoll, that was published in the Journal of Law and Economics in 2006. That research showed that employers with access to background checks are actually more likely to hire African Americans, especially African American men, than those without access to that information.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More