Criminal Background Checks Now a Racist Practice According to Critics 

The practice of conducting criminal background checks on potential employees has been a topic of intense debate in recent years. Critics argue that these checks disproportionately affect racial minorities, leading to claims of systemic racism. The argument is that these checks, while seemingly neutral, can have a disparate impact on certain racial groups, particularly Black individuals.

Criminal Background Checks May Have A ‘Disparate Impact’

Controversy over criminal background checks arises from the idea that they can have a “disparate impact” on black individuals and expose private firms to lawsuits. This is because six times more black men are incarcerated than white men are.

That means more blacks have criminal records that can be used against them during hiring procedures. This practice, according to critics who believe in systemic racism, unfairly affects one racial group compared to others.

The Role of the EEOC In Criminal Background Checks

As an agency of the United States government, the Equal Employment Opportunity Commission enforces federal laws prohibiting job discrimination based on race, color, or national origin.

They advise employers to “be careful when using employment decisions on [the] basis [of] background problems [that] may be more common among persons within any racial group.” Also, they have issued guidelines for employers about conducting their investigation without breaking any Federal law forbidding discrimination.

The Disparate Impact Theory On Hiring Practices

Disparate impact is a legal theory that allows challenges to employment or educational practices that are non-discriminatory on their face but have a disproportionately negative effect on members of legally protected groups.

If an employment practice that operates to exclude [members of a protected group] cannot be shown to be related to job performance, the practice is prohibited.

The NAACP Lobbied The EEOC Regarding Background Checks

In 2011, the National Association for the Advancement of Colored People (NAACP) formally lobbied the EEOC to apply disparate impact to background checks. The NAACP argued that these checks disproportionately affect people of color, particularly Black individuals, who are more likely to have a criminal record due to systemic issues in the criminal justice system.

The NAACP also pushed for employers to remove the standard checkbox question on job applications that asks: “Have you ever been convicted of a felony?”

The EEOC’s Recommendations For Employers

In response to the concerns raised by the NAACP and other organizations, the EEOC issued recommendations for employers regarding the use of criminal background checks.

The EEOC recommended “that employers not ask about convictions on job applications,” and instead, conduct a more individualized assessment that takes into account the nature of the crime, the time elapsed since the crime, and the nature of the job

Employers’ Defense Is That Checks Are Part Of The Hiring Process

Companies argue that screening applicants for felonies, misdemeanors, and credit problems is a necessary part of the hiring process. It protects against theft, embezzlement, fraud, and workplace violence.

Employers also argue they must ensure their employees’ safety as well as those served by them so finding out whether someone has committed an offence helps inform decisions about whom to employ.

Criminal Background Checks Are Done By 69% Of Employers

More than two-thirds (69%) of employers conduct criminal background checks, while almost half (47%) run credit checks for at least some positions. These checks can reveal information about an individual’s criminal history, financial stability, and other factors that may be relevant to their suitability for a job. 

However, the use of these checks has been criticized for potentially leading to discrimination.

The Dilemma for Employers Face When Hiring Without Any Checks

The new rule “puts employers between a rock and a hard place.” They must hire individuals with criminal records and risk liability for their work-related misconduct, or reject such hires and face a federal or class-action lawsuit.

This presents a significant challenge for employers, who must balance the need to ensure the safety and integrity of their workplace with the need to avoid discriminatory hiring practices.

Sheetz Store’s Sued By The EEOC For Requesting Background Checks

A privately held convenience store chain, Sheetz was sued by the EEOC for requesting background checks. The lawsuit alleged that the company disproportionately screened Black Americans.

According to the complaint, the company has a long-standing policy of checking every job applicant’s criminal conviction history and then denying employment based on those records.

Sheetz Responded That They Are ‘Built On Diversity and Inclusion’

In response to the lawsuit, Sheetz said “We are built on diversity and inclusion,”. It is not unusual for us to take these kinds of claims seriously. We have been working with EEOC for nearly 8 years trying to find a middle ground and put this behind us”.

The company reiterated its commitment to diversity and inclusion and expressed its willingness to collaborate with the EEOC in addressing these allegations.

The EEOC’s Claims That Sheetz Violated The Civil Rights Act

The EEOC states in its lawsuit that Sheetz has violated Title VII of the Civil Rights Act of 1964. 

This law prohibits employment practices that cause a discriminatory impact because of race when those practices are not job-related and consistent with business necessity or where alternative practices with less discriminatory impact are available.

The Background Check Process Is Common For Employees

For races all over America, criminal history is just looked at during a background check hence no bias should be seen here; it is whether someone has ever committed a crime or not at all.

There is no way whatsoever one can change results from a background check – either you’ve done something wrong before or never did anything illegal.

The Failure Rate Of Criminal Background Checks

The EEOC said that White Americans had a failure rate of under 8% with Sheetz, compared to Black Americans and Native Americans, who had a failure rate of 14.5% and 13%. Failure rates of background checks can vary based on several factors.

For instance, in 2023, 38% of companies conducted background checks as a precautionary measure to mitigate the possibility of future criminal activity. There’s a 46% discrepancy in reference and credential verifications against applicants’ information

Criminal Background Checks May Be Disproportionate But Necessary

The issue of whether or not criminal background checks are racist by nature is indeed very complicated and has many sides to it. Even though we know that these tests can disproportionately affect some races more than others, it should also be noted that employers do have legitimate reasons for carrying them out.

Therefore, as this topic continues developing, all parties involved need to talk openly and honestly about it so that there can be fair hiring processes.