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U.S. Census Bureau sued over discriminatory hiring practices

Black Voice News | 9/14/2010, 11:03 a.m.

With millions of adults having criminal records -- anything from underage drinking or possessing an ounce of pot to homicide -- a growing number of job seekers are being systematically weeded out by criminal background checks and personal credit histories, according to the Equal Employment Opportunity Commission (EEOC) the agency that enforces federal employment discrimination laws. The growing use of criminal background checks as much a part of job applications as an applicant's name and address - is now under scrutiny by the EEOC.
"Our sense is that the problem is snowballing because of the technology allowing these checks to be accessed online with a fair amount of ease," according to Carol Miaskoff, assistant legal counsel at the EEOC. The EEOC sent a strong message to employers recently when it filed a class-action lawsuit against, a Texas-based events planning firm, claiming the company discriminated against African Americans, Hispanics and males by rejecting job seekers based on criminal records and credit history.

The issue is about to be put to another test. Several individuals have sued employers, claiming background checks unfairly eliminated them from a job. And, the U.S. Census Bureau is being sued in a class-action lawsuit that alleges the bureau used conviction and arrest records to inappropriately deny employment or terminate employment.

The suit alleges as many as 100,000 minority applicants may have been denied jobs as temporary census-takers because of bureau policies. Census officials would not comment on the suit.

Amy Ridenour, president of the National Center for Public Policy Research, argues that the EEOC, "should not be trying to micromanage private hiring decisions beyond the authority given to it by Congress, which this wrongheaded policy surely does."

What's getting employers in trouble with the EEOC are blanket policies against hiring anyone with a criminal record and failure to show the correlation between background checks and the job itself.

Federal anti-discrimination laws prohibit employers from screening job applicants for criminal backgrounds in a way that disproportionately excludes certain racial or ethnic groups.

An exception is when an employer can show that the practice is job-related and consistent with business necessity.

If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred.

Larry Ealy, an Apple Valley minister with a felony record complains of wide spread discriminatory hiring practices that deny employment no matter how old the conviction, the applicant's prior work history or whether it's related to the job at stake.

"I've been off parole for 17 years. I'm a productive member of my community and church yet when I apply for a job and the employer runs a background check, I can fully expect my application to go nowhere," said Ealy. "People make mistakes but when they've paid their debt to society they should not be punished again."

"Millions of skilled and educated people are being denied a living wage or relegated to minimum wage jobs based on fear and unapologetic discrimination," he said. "Plain and simple, people can't transform their lives without work. They are not going to starve so what are the alternatives?"

Background checks are lawfully performed on nearly every federal and state contract services provider, from defense contractors to persons providing janitorial services at public facilities.

Most federal and state licenses, including railroad operators, pilots, architects, attorneys, barbers, pawn brokers, dentists, hearing aid dealers, and hundreds more, require background checks before issuance. By statute, some convictions result in immediate disqualification for receiving or continuing to hold some of these licenses.

ACLU attorney Ariela Migdal, said a person might have a blemish that has nothing to do with the job he or she is seeking.

"Records sometimes are inaccurate or not updated to reflect that someone arrested later had charges dropped or a conviction overturned or expunged," said Migdal.

The EEOC stance is drawing fire from companies and even some minority groups that claim second guessing or placing limits on screening could unjustly interfere with an employer's ability to create a safe workforce.

Joe Hicks, of Project 21, a national African American leadership network, points out that while "Americans strongly believe in the concept of redemption, there must be consequence for illegal behavior."

Ealy, who is African American, argues unfair laws, punitive parole practices and a lack of prison to job transitional programs sanction a culture that disenfranchises ex-offenders particularly Black men.

What's fair? The issue has no ready solutions. The growth of online databases and a multimillion dollar background check industry have made it easy for employers to find detailed information about potential hires.

Companies see the checks as another way to weed out unsavory candidates, keep a safe work environment and prevent negligent hiring lawsuits.

A 2010 survey by the Society for Human Resource Management showed that 73 percent of major employers report that they always check on applicants' criminal records, while 19 percent do so for select job candidates.

Justice Department statistics show that while the national unemployment rate is at 9.5 percent the jobless rate for Black men is 17 percent compared to 8.6 percent for their white male counterparts. 38 percent of the U.S. prison population is African American compared with 12 percent of the general population.

In 2008, African Americans were about six times more likely to be incarcerated than whites.

The incarceration rate for Latinos was 2.3 times higher than whites.

Experts on both sides of the issue agree the Census and Texas lawsuits send a signal to employers that they need to be cautious in using background checks as a means of weeding out applicants with criminal records. Some employers may decide to forgo background checks for fear they'll be sued for discrimination. On the other hand, banks for example won't want embezzlers handling money. Pharmacies don't want drug addicts behind the counter.

And schools and day-care centers would be derelict if they hired child molesters.