Are Criminal Background Checks Discriminatory?

In some states, credit checks are considered discriminatory, keeping minorities and the poor out of jobs. Although the Equal Employment for All Act has been in the works for a few years to address this, the bill that would amend the Fair Credit Reporting Act seems to be stalling. Even if using credit as a measure of work ethic and trustworthiness can be considered financial discrimination, should criminal background checks be placed in the same category?

A recent piece published on DiversityInc.com thinks so. The article cites a lawsuit by the EEOC against the U.S. Census Bureau for discriminating against blacks and Latinos, who overall have more arrest records, through conducting criminal background checks.

The DiversityInc.com backs up its stance against criminal background checks with three points:
• Inaccurate records, which often result from identity theft;
• Title VII, which essentially states that arrest records only should not be used as a measure for hiring;
• The employability of ex-offenders.
A blanket hiring policy through using arrest records only as a measure of hiring violates Title VII.

Although DiversityInc.com sees the advantages – no negligent hiring claims – and disadvantages of criminal background checks, Title VII protects against discrimination through criminal background screenings. While nearly all employers conduct criminal investigations on all candidates, several factors should be taken into consideration, not only criminal and financial history. Although a person with a criminal record relating to the job, such as the worker arrested for diesel theft working for the Colorado Department of Transportation, should be barred, those with criminal records unrelated to the duties of the position should still be taken into consideration.

Criminal background checks are helpful for finding the right candidates but, at the same time, need to be evaluated on a case-by-case basis.