A July 2013 study by the National Employment Law Project (NELP) found that widespread errors in FBI arrest data – which is increasingly relied upon by employers conducting criminal background checks – has reached alarming proportions. According to NELP staff attorney Madeline Neighly, the FBI records used for background checks “might be considered the gold standard, but these records are a mess.”

Part of the problem stems from the fact that the FBI is processing almost 17 million criminal background checks annually, or six times more than a decade ago. NELP reported that as many as 50% of the records compiled by the FBI, which constitute the largest database of criminal records in the nation, may be inaccurate or incomplete – resulting in serious economic hardships, especially for minority job applicants.

One reason for the inaccuracies is that background checks are quick to include arrests and criminal charges but much slower to show dismissals, not-guilty findings, expungements, felonies reduced to misdemeanors and other dispositions of criminal proceedings. The FBI acts as a clearinghouse for state agencies that supply arrest and criminal record data, which is collected and incorporated into background checks disseminated to authorized third parties.

Unfortunately, the FBI apparently lacks the resources to verify the accuracy of the data being supplied to potential employers, resulting in the undeserved rejection of many otherwise qualified job applicants.

Other problems with background checks are attributable to private companies that compile criminal record information from public databases, using software that often fails to distinguish between people with the same or similar names, or those who are victims of identity theft. [See: PLN, May 2013, p.34].

Further complicating the situation is the fact that applicants rejected due to inaccurate background records are disproportionately black or Hispanic, raising the possibility of racial discrimination. According to a 2010 report issued by the U.S. Department of Justice, in approximately half the states up to 40% of criminal records were missing final dispositions. Backlogs in updating this data varied from state to state, sometimes taking up to 18 months.

Although the FBI cautions in its background checks that job applicants should be provided an opportunity to challenge or correct their records, that does not always occur. Instead, the burden falls on the applicant to prove his or her innocence. When potential employees are given a copy of the faulty background information and a meaningful opportunity to challenge inaccuracies, they are often able to correct the errors.

One example of the ordeal faced by job applicants rejected due to incorrect criminal background data is the plight of seaport workers, who are required by the Transportation Security Administration to pass an FBI background check. More than 120,000 applications for seaport workers have been rejected since 2007, but applicants were successful in 94% of the cases where they filed appeals or sought waivers.

As another example, the Department of Commerce’s 2010 census required the hiring of vast numbers of people, and 4 million job applications were received. Of those, a quarter were rejected as a result of FBI background checks. A lawsuit filed in April 2010 alleges that applicants had only a month to disprove the negative reports, which disproportionately discriminated against blacks and Hispanics. If certified, the class of eligible claimants is estimated to number over 850,000. The district court denied the Department of Commerce’s motion to dismiss on March 22, 2012, and the case remains pending. See: Houser v. Blank, U.S.D.C. (S.D. NY), Case No. 1:10-cv-03105-FM.

In its July 2013 report, NELP advocated for a more equitable appeal process when incorrect information is included in criminal background checks, which would give rejected job applicants at least two months after they are apprised of the reason for the rejection to submit evidence to dispute faulty background information.

“[T]hese inaccuracies have a devastating impact on workers, especially workers of color who are disproportionately impacted by the criminal justice system. There is a solution to this problem that would immediately result in less job-loss and financial hardship: the FBI must ensure that records are accurate and complete prior to being released for employment and licensing decisions,” NELP concluded.

Additionally, the Equal Employment Opportunity Commission (EEOC) has grown concerned in recent years with possible racial discrimination due to the increased use of criminal background checks, and the agency issued new guidance to employers on that issue in April 2012. [See: PLN, June 2012, p.20]. Approximately 86% of employers use background checks during the hiring process, according to a 2012 survey by the Society for Human Resource Management.

“Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race,” said EEOC Chairwoman Jacqueline A. Berrien. “Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII.”

In June 2013, the EEOC took legal action against two large companies – Dolgencorp LLC, the parent corporation of discount retailer Dollar General, and a BMW factory in South Carolina – due to their hiring practices. According to a lawsuit filed by the EEOC, Dollar General violated the civil rights of two job applicants – incorrectly stating that one had a felony conviction based on a background check, while denying employment to another applicant who had disclosed a six-year-old conviction.

In another suit, the EEOC argued that BMW’s requirement that contract workers already employed at the company’s plant had to reapply for their jobs in 2008 resulted in a disproportionate percentage of minority employees being fired for failing background checks, absent individualized assessments. Both suits were brought under Title VII of the Civil Rights Act. See: EEOC v. Dolgencorp LLC, U.S.D.C. (N.D. Ill.), Case No. 1:13-cv-04307 and EEOC v. BMW Manufacturing Co. LLC, U.S.D.C. (D. SC), Case No. 7:13-cv-01583-HMH-JDA.

Predictably the EEOC faced intense criticism from business interests, with some saying the agency was trying to protect “former criminals.” Todd McCracken, with the National Small Business Association, noted, “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.”

According to BMW spokesman Kenn Sparks, “BMW believes that it has complied with the letter and spirit of the law and will defend itself against the EEOC’s allegations of race discrimination.” Dollar General announced that its employment policies are “structured to foster a safe and healthy environment for its employees, its customers, and to protect its assets in a lawful, reasonable and nondiscriminatory manner.”

Yet when rejecting job applicants with criminal records, Dollar General and BMW appear to be working at cross-purposes. Given the nation’s enormous prison population and with around 637,000 prisoners being released each year, it is unwise on many levels to refuse to hire people who are otherwise qualified when employment is essential to help ex-offenders become law-abiding, tax-paying citizens.

Nine state Attorneys General sent a joint letter to the EEOC on July 24, 2013 in response to the agency’s lawsuits against Dollar General and BMW, protesting the EEOC’s enforcement actions related to criminal background checks. The Attorneys General called the suits “misguided and a quintessential example of gross federal overreach.”

Lawsuits alleging discrimination due to criminal background checks that disproportionately impact minorities are not easy wins, however, even for the EEOC. On August 9, 2013, a federal district court in Maryland ruled against the agency in a case similar to those filed against Dollar General and BMW, finding that an event-marketing firm, Freeman Co., did not discriminate against minority job applicants by conducting criminal background and credit checks during the hiring process. In dismissing the case, the court noted that the EEOC itself uses background checks. See: EEOC v. Freeman Co., U.S.D.C. (D. Md.), Case No. 8:09-cv-02573-RWT; 2013 U.S. Dist. LEXIS 112368.

In November 2013 the EEOC was sued by the State of Texas, which argued that the agency’s guidance related to criminal background checks limits “the prerogative of employers, including Texas, to exclude convicted felons from employment.” The EEOC filed a motion to dismiss on January 27, 2014, which remains pending. See: State of Texas v. EEOC, U.S.D.C. (N.D. Texas), Case No. 5:13-cv-00255-C.

Although there is some evidence that society’s view of former prisoners is becoming less punitive, the reality is that ex-offenders still have a very difficult time finding jobs that pay a living wage. A 2003 study by sociologist Devah Pager found that being a minority increased the negative impact of a criminal history, in that white job applicants with criminal records were more likely to be hired than black applicants with similar records. It is unlikely that much has changed over the past decade.

The EEOC stated in its lawsuits against Dollar General and BMW that the companies used criminal background checks in a manner that had a “disparate impact” on minority job applicants, who are more likely to have criminal histories.

Yet barely mentioned in the studies related to background checks and criminal records, or in the EEOC’s enforcement actions, is the fact that the underlying reason for many of the problems related to ex-offenders finding employment is our nation’s policy of mass incarceration. Around 2.2 million people are incarcerated in prisons and jails at any given time; those released will all have criminal records and, thus, a paucity of job prospects.

According to a research study published in January 2014, 49% of black males, 44% of Hispanic males and 38% of white males are arrested by age 23, which can have a significant impact on their ability to find future employment.

“Criminal records that show up in [background] searches can impede employment, reduce access to housing, thwart admission to and financing for higher education and affect civic and volunteer activities such as voting or adoption. They also can damage personal and family relationships,” noted University of South Carolina criminology professor Robert Brame, the lead author of the study.

Enforcement actions by the EEOC, “Ban the Box” initiatives to remove criminal history questions from job applications, federal legislation – such as the Fairness and Accuracy in Criminal Background Checks Act introduced by U.S. Rep. Bobby Scott in July 2013 – and increased awareness about the re-entry needs of released prisoners can help alleviate problems related to background checks and employment for ex-offenders. Ban the Box legislation has been enacted in ten states and dozens of cities, and some private employers, notably Target, no longer ask about criminal records on their job applications. [See: PLN, Sept. 2011, p.32].

But more is needed. Specifically, adding “prior incarceration status” to the list of protected classes – which include race, ethnicity, gender, religion, age and disability – that employers may not legally consider when hiring job applicants would go a long way to help level the employment playing field for ex-offenders. That, however, is a solution unlikely to happen anytime soon.

Sources: “Wanted: Accurate FBI Background Checks for Employment,” National Employment Law Project (July 2013), www.washingtonpost.com, www.foxnews.com, www.eeoc.gov, www.economist.com, www.thenation.com, www.thecrimereport.org, www.eurekalert.org, Wall Street Journal, www.labi.org

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