CABL Forum - Re: Background Check Question for Directv...

FYI

Definitively establishing when criminal background checks for
employment cross the line, the EEOC has stated that “an absolute bar
to employment based on the mere fact that an individual has a
conviction record is unlawful under Title VII.”17 Thus, blanket hiring
prohibitions of the type documented in this report violate this
fundamental mandate. Yet Title VII does not wholly bar the use of
criminal records in employment decisions. Instead, the EEOC has
provided a strong and clear framework for assessing criminal records
when making an employment decision. An employer’s consideration of
criminal records may pass muster under Title VII if an individualized
assessment is made taking into account:
1. The nature and gravity of the offense or offenses;
2. The time that has passed since the conviction and/or completion of
the sentence; and
3. The nature of the job held or sought.18
The EEOC’s case-by-case approach ensures that people with criminal
records are not barred from employment for youthful indiscretions,
minor run-ins with the law, or more serious offenses from the distant
past. Although the EEOC developed this framework more than 20 years
ago, subsequent research has underscored its wisdom.
Buttressing one of the core EEOC factors regulating the use of criminal
background checks, research indicates that lifetime employment bans
on people with criminal records are not correlated to risk. For example,
a major study of people with felony convictions found that 18-year-olds
arrested for burglary had the same risk of being arrested as same-aged
individuals with no record after 3.8 years had passed since the first
arrest (for aggravated assault it was 4.3 years, and for robbery it was 7.7
years).19 If the individual was arrested initially for robbery at age 20
instead of at age 18, then it takes the person three fewer years to have
the same arrest rate as a non-offender.20 Notably, those individuals
convicted of property crimes are especially likely to stay clear of the
criminal justice system compared to other offenders.
This groundbreaking research has major implications for how
employers evaluate the criminal records of workers. Professor Alfred
Blumstein, one of the nation’s leading criminologists, and his colleague
Kiminori Nakamura, conclude that within a narrow period of time, an
individual’s “criminal record empirically may be shown to be irrelevant
as a factor in a hiring decision.”21 Furthermore, these studies evaluate
A major study found that 18-year-olds
who were arrested had the same risk
of being arrested as someone with no
record after 3.8 years had passed
since a burglary arrest, 4.3 years for
aggravated assault, and 7.7 years for
robbery.
Type of Felony Arrest
Years Since
First Felony
Arrest 3.8
4.3
7.7
Burglary
Aggravated Assault
Robbery
8
7
6
5
4
3
2
1
0
65 Million “Need Not Apply:” The Case for Reforming Criminal Background Checks for Employment 7
the risk of committing an offense without distinguishing whether it
took place on the job or if it was job-related. The probability of
committing an offense at the workplace, which is a significantly smaller
subset of offenses, would likely be even more remote.
A criminal record alone is an inadequate measure of an individual’s risk
of creating a safety or security threat for other reasons as well. A record
may include a wide swath of misleading information; not only is a
criminal record difficult to interpret, it may include arrests that were
dropped because of factual innocence. Even worse, commercially
prepared background checks have been found to be rife with
inaccuracies.22 FBI background checks, which one would expect to have
a higher level of accuracy, are shockingly out of date 50 percent of the
time, thus routinely failing to reflect whether an arrest actually led to a
conviction.23 The bottom line is that a criminal record can be a blunt,
misleading tool to determine whether a worker poses a risk on the job.
Illegality and inaccuracy aside, the consequences to job seekers when
employers refuse to hire most people with criminal records cannot be
overstated. As the former acting chair of the EEOC explained:
Fears, myths and such stereotypes and biases against those with
criminal records continue to be part of the . . . decision making
for many employers. Business and industry suffers as a result
because it is not able to benefit fully from the skills of every
potential worker. For our economy to be successful, we cannot
afford to waste any available talent.24

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Re: Background Check Question for Directv...