Home > Uncategorized > The intersection of FCRA, criminal records, and civil rights: the FTC punts

The intersection of FCRA, criminal records, and civil rights: the FTC punts

December 7, 2012

I’ve discussed before the issues that surround the use of criminal background reports, through which FCRA-regulated consumer reporting agencies provide criminal records to employers, and civil rights law.  Employers are unlikely to hire applicants with criminal records.  Minorities are disproportionately likely to have criminal records.  This means that when employers use criminal background reports, minorities are probably affected more than other groups.

Whether this is a problem that should have a legislative solution is up for debate.  The EEOC has suggested that employers can be liable for civil rights violations when they use criminal background reports.

Today, the FTC – which continues to have some responsibility for enforcing the FCRA – submitted written testimony to the US Civil Rights Commission, which it intends to use in reviewing the EEOC’s suggestions.

Interestingly (or not), the FTC testimony doesn’t really say anything at all about civil rights.  It just explains what the FCRA does by walking the reader through some of its main provisions.  The conclusion is especially vague, saying only:

“The FCRA includes significant protections relating to the use of consumer reports for employment purposes, and the FTC is committed to using all of the tools at its disposal to ensure that job applicants and employees are protected. We look forward to continuing to work in this important area.”

This either means that the FCRA does so much to protect consumers that nothing more is necessary, or nothing at all.  My money is on the latter.

Long story short:  if anyone is going to make a suggestion about whether and how criminal background reports should be regulated given civil rights issues, the FTC is not going to go first.

Categories: Uncategorized
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