Criminal records a delicate subject for employees, employers

It’s probably a safe bet that back in 1964 the authors of the Civil Rights Act didn’t have the rights of convicted criminals in mind. They certainly weren’t included as a protected class in the original law.

They still aren’t included, even though the law has been updated several times. Criminal records, though, are at the heart of a new federal lawsuit filed by the Equal Employment Opportunity Commission against BMW Manufacturing Co. in South Carolina.

The EEOC charges that the automaker violated the anti-discrimination provisions within Title VII of the Civil Rights Act through the use of criminal background checks in employment decisions.

The actual discrimination charged is based on the principle of “disparate impact,” which turns out in most cases to be a lawyerly way of saying: “It’s complicated.” Essentially it says that an action or policy does not have to include the intent to discriminate in order to be discriminatory in its effect, because its impact is disproportionately greater on a specific group that is protected under the law.

In the EEOC case recently filed, the argument is that using criminal records to screen applicants has a disparate impact on blacks and is therefore racial discrimination prohibited by the Civil Rights Act. The disparate impact is attributed to the statistical distribution of criminal convictions and prison sentences, which are both disproportionately high for blacks, a protected class under the law.

The “it’s complicated” part has two levels, at least. First, there are the factual details that might be important, or not, depending on how the litigation process goes. In the BMW case, for example, the workers involved in the lawsuit were not direct employees of BMW but of a contractor who formerly provided labor for a BMW warehouse operation.

That contractor was required to followed BMW’s policy of checking criminal records on job applicants but apparently limited their searches to seven years. BMW has no time limit on its criminal records search, and when the new contractor took over and initiated fresh criminal records checks that went back further the process turned up some past employees with criminal convictions. Their employment applications were rejected despite the fact that they had already been successful workers at the warehouse. The rejected worker-applicants then filed a complaint, which eventually resulted in the current EEOC lawsuit.

At a second level of “it’s complicated,” job applicants with criminal records showing one or more felony convictions represent an area of anti-discrimination law that has not been fully explored — and it is a particularly sensitive area for society in general as well as employers.

Our society has not figured out how to address the issue of convicted felons when it comes down to what we expect of them after they have served their prison sentences, and how we expect them to be treated. In no small part this is because of the wide differences in the felons themselves.

To some a felony conviction is a wake-up call to change their lives, and they do. To others the conviction fuels the desire to do it again, perhaps but not necessarily using the lessons learned to reduce their chances of being caught.

The problem is to figure out which felons are which and, so far, expert experience has been of little help. Certainly parole boards have had an unimpressive record in sorting out the potentially good ones from the dangerous and often deranged inmates. And psychologists and psychiatrists haven’t done significantly better.

It seems a bit of a stretch, then, to expect employers to solve this problem for us or force them to stop using criminal records to screen applicants. And although it is not a legal defense under the Civil Rights Act it isn’t the employer’s fault that there are a disproportionate number of a protected minority that have criminal records, causing a disparate impact. The law is unclear what we expect employers to do about it, except, in the EEOC’s view, to stop using criminal records entirely.

It is not clear whose interests will be served if the EEOC wins its lawsuit. If it forces employers to hire known criminals, this will have a negative impact on American workplaces without an offsetting positive impact on the source of the problem. The administration and Congress would make better use of its time by seeking a solution than by prosecuting employers wrestling with a difficult situation they neither created nor wished for.

About the only good thing about this lawsuit is the possibility, however slight, that it might shed some light on how employers should use background information in making hiring decisions. In a world where vast quantities of personal information are almost instantly available, this is not a minor issue.

James McCusker is a Bothell economist, educator and consultant. He also writes a monthly column for the Herald Business Journal.

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