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EEOC continues to consider background checks and FCRA

July 29, 2011

I noted a few months ago that the EEOC – the federal agency that interprets and enforces federal anti-discrimination law – had dipped its toe into the FCRA pool (how’s that for a vivid analogy?).  The EEOC filed a lawsuit which claimed that an employer’s use of accurate FCRA reports was sanctionable if the use had a disproportionately negative impact on African-American job applicants.

That lawsuit was not an isolated incident.  The EEOC recently held a symposium of sorts on “Striking the Balance Between Workplace Fairness and Workplace Safety.”  It doesn’t seem to have reached any earth-shaking conclusions.  Everyone seems to agree that there is a tension between:  a) giving people who were convicted of crimes a chance to rehabilitate themselves by finding and keeping a good job; and b) keeping people who are prone toward violence or theft – as demonstrated by past commission of crimes – out of situations in which the public could be at risk.

This is not an easy tension to resolve.  I think of one case I had in which an employer declined to hire a potential employee whose job would have entailed going into people’s homes to do work.  The employer denied the potential employee because he had been convicted of sexual assault over a decade earlier.  Was that a just decision?  The employer was understandably fearful of liability:  suppose this person had been hired, had sexually assaulted someone in her home, and it later came out that the employer knew of the assaulter’s prior criminal history but hired him anyway.  On the other hand, the assault had happened a decade earlier, and it did not appear to have involved a stranger:  the odds of the potential employee’s assaulting anyone were slim, and declining to hire him kept him unemployed.

Employers will probably continue to be gun-shy about hiring convicted criminals until and unless they get some legal assurance that they won’t be liable for the results if those people commit further crimes while at work.  But I don’t know how such an assurance could work, and I don’t suppose victims’ rights groups would be particularly supportive of it.

As I say, there is a tension here, and it’s probably unresolvable.  But it’s nice to see the EEOC talking about it.

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