People With Criminal Records “Need Not Apply”: Criminal Background Checks and Race Discrimination

On Behalf of | April 7, 2017 | Race Discrimination

More than 90% of employers rely on criminal background checks to make hiring decisions, but this common practice raises numerous concerns.  First, there are practical issues about whether background checks actually provide employers with meaningful information.  For example, recent research indicates that after a certain amount of time, individuals who have committed a crime are no more likely to re-offend than an individual without a criminal record.  Further, criminal records are frequently plagued with inaccuracies that are difficult for an individual to correct, and many individuals apply for jobs without knowing their records contain errors.  These issues, among others, suggest that employers who prohibit people with certain criminal records may be needlessly turning away qualified candidates and denying job seekers a meaningful chance to rebuild their lives.

In addition to these practical concerns, the use of background checks and prohibitions against hiring individuals with criminal records may, under certain circumstances, constitute race discrimination and violate state and local laws.  Indeed, the U.S. Equal Employment Opportunity Commission (EEOC) – the agency tasked with enforcing certain federal laws that prohibit discrimination in hiring and employment, including Title VII of the Civil Rights Act of 1964 – has long recognized that the use of arrest and conviction records in hiring decisions could result in race discrimination in violation of Title VII.

Today, Title VII claims and other legal challenges against employers’ use of criminal background checks are increasingly critical to a growing number of Americans – as many as one in three – who carry the burden of a criminal record.  The U.S. currently incarcerates 2.3 million people, the vast majority of whom will be released. In 2015 alone, an estimated 10.7 million people were arrested.  All of these individuals will carry a criminal record.  Because African Americans are arrested and incarcerated at disproportionate rates – about 13% of the U.S. population is African American, but African Americans account for 28% of those arrested and 40% of those incarcerated – African Americans are also disproportionately burdened by criminal records.

As a result of the racial disparities embedded within our expansive criminal justice system, employers that refuse to hire applicants with criminal records are likely rejecting a disproportionate number of African American applicants, potentially in violation of Title VII. Employers’ rejection of applicants with criminal records can compound the discrimination African Americans already face in the job market.  As one study found, employers are more likely to call back a white applicant with a criminal record than an African American applicant without a record.

Proving race discrimination under Title VII based on the use of criminal records will almost always require extensive statistical analysis.  In those circumstances where it may be difficult to prove race discrimination, state and local statutes may provide plaintiffs a clearer path to relief.  For example, New York state and city human rights and corrections statutes prohibit employers from rejecting job applicants based on their convictions without first evaluating certain factors.

Some progress has been made in recent years.  Litigation around these issues has increased.  States are developing additional solutions to reduce the barriers created by the stigma of a criminal record.  Several states have already adopted policies based on the EEOC’s 2012 Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.  More jurisdictions have implemented “ban the box” legislation to prevent employers from inquiring about criminal record histories on their initial applications, or even until after they extend an offer, affording individuals with criminal records an opportunity to get their foot in the door.

As the number of Americans with a criminal record continues to grow, it is more critical than ever for job seekers to understand their rights and the laws in their state, and for employers to develop hiring policies that protect applicants’ civil rights.  If you think you may have been denied a job or been subject to wrongful termination because of your criminal record, consult an employment lawyer from Sanford Heisler Sharp who can assess the circumstances of your case.