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The Government Checks Criminal Records. Why Can't Private Employers?

Seal of the United States Equal Employment Opp...

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The government’s lawsuits against BMW and Dollar General Dollar General over using criminal background checks to screen employees represents an aggressive new assertion of the disparate impact theory of discrimination. This guest post by two partners in Jones Day’s Washington office suggests the Obama administration has gone too far. Michael A. Carvin served from 1985 to 1987 as the Deputy Assistant Attorney General for the Civil Rights Division of U.S. Department of Justice.  Eric S. Dreiband served from 2003 to 2005 as the General Counsel of the U.S. Equal Employment Opportunity Commission.

At the heart of the nation’s anti-discrimination laws is the principle most famously articulated by Martin Luther King, Jr., that persons should “not be judged by the color of their skin but by the content of their character.”

Title VII of the Civil Rights Act codifies that principle by prohibiting discrimination in employment on the basis of the irrelevant characteristics of race, color, religion, sex, or national origin.

But the Equal Employment Opportunity Commission, which enforces Title VII, has turned the principle on its head.  As part of its campaign to seek relief for convicted criminals under Title VII, the EEOC has adopted an enforcement policy making it presumptively unlawful for an employer to consider an applicant’s prior criminal history as a basis for denying employment.  So even though the purpose of Title VII is to prevent employers from discriminating against individuals based on certain criteria precisely because they say nothing about an individual’s character or fitness, the EEOC now seeks to prevent or limit employers from considering a factor—serious criminal conduct—that bears directly on these job-related considerations.

Thus, just this month, we see the spectacle of the federal government suing a private employer, BMW, for violating the “equal employment opportunities” of “black” applicants because, according to the EEOC’s complaint, the employer excludes from its workforce those convicted of “Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations,” as well as “theft, dishonesty, and moral turpitude.”  While the EEOC may believe that prior convictions for murder, rape, and theft are not relevant considerations in assessing competing applicants, that idiosyncratic view is certainly counter-intuitive and, more to the point, provides no basis for inferring racial discrimination.

The EEOC’s sole basis for alleging that excluding murderers, rapists, etc. from one’s workforce denies “equal opportunity” on a racial basis is that the “policy operates to exclude disproportionate percentages of blacks.”  But, due to factors wholly beyond any employer’s control, there are statistical differences in the rate of criminal convictions between various races and between men and women.  Thus, any effort to consider prior serious felony convictions will almost inevitably have the “disparate impact” EEOC alleges (particularly since, in a policy irreconcilable with well-established Supreme Court precedent and the law itself, the EEOC requires the employer to disprove this presumed “impact”).

Indeed, in one pending lawsuit, the EEOC alleges that the company’s use of criminal history in hiring is sex discrimination against men, white or minority, because men disproportionately commit more crimes than women.  Ironically, by seeking Title VII relief for men but not for women, even when women have been denied employment for committing similar crimes, the EEOC itself is excluding certain women because of their sex—something that Title VII expressly condemns.  Likewise, in its case against BMW, EEOC decided not to seek relief for 18 criminals because they are, according to EEOC, “non-black.”  It appears that to EEOC some criminals are worth more than others, depending on their gender and race.

Thus, every consideration of prior serious felonies will create the clear risk of “disparate impact” EEOC investigations and class action lawsuits.  Worse still, the pressure for employers to hire and retain convicted felons is greatly exacerbated because the EEOC’s policy makes it impracticable, if not impossible, to justify consideration of prior felonies as a legitimate employment concern, even though the federal government itself takes account of such prior convictions in its own personnel decisions.

According to the EEOC, an employer must show that its criminal conviction policy “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”  But there are no statistical studies showing that a convicted rapist is more likely to embezzle funds from an employer or that a convicted embezzler is more likely to endanger fellow employees.  No company can realistically meet this evidentiary burden.

The EEOC’s policy repudiates what the federal government’s own employment practices make obvious:  A person’s history of compliance with the law is relevant to any job.  In a recent decision, NASA v. Nelson, the Supreme Court upheld the federal government’s inquiry into whether employees of federal contractors had previously used drugs because “the Government is entitled to have its projects staffed by reliable, law-abiding persons” and “[q]uestions about illegal-drug use are a useful way of figuring out which persons have these characteristics.”  The Court emphasized that questions about an applicant’s “violations of the law,” like other questions going to the applicant’s “honesty or trustworthiness,” are “reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business.”

As further proof that prior criminal activity is a legitimate, nondiscriminatory employment criterion, the federal government routinely performs criminal background checks on applicants for the federal workforce.  Government regulations require a “suitability” review, which includes consideration of “[c]riminal or dishonest conduct,” because this bears on “a person’s character or conduct that may have an impact on the integrity or efficiency of the service.”  Although the extent to which criminal convictions automatically disqualify former criminals from federal employment is unclear, the relevant point remains:  even the federal government believes that prior criminal convictions are presumptively valid and nondiscriminatory factors that are directly tied to the job-related issue of a potential employee’s “character or conduct.”

If the government is entitled to have law-abiding workers, then surely private employers are as well.  And it is all the more necessary for employers to exclude risky criminals from its workforce because employers may be ultimately liable, under principles of vicarious liability, for the work-related misconduct of their employees.

That private employers might be more reluctant to expose their customers and employees to former criminals provides no basis for condemning such prudence as race or sex discrimination.  At most, it reflects a different risk-benefit assessment, which should not be second-guessed by the EEOC or the courts under Title VII.

Because of the EEOC’s policy, employers now face a Catch-22.  They must either hire criminals or risk an EEOC investigation and class action lawsuit.  This is hardly the result that Title VII was supposed to achieve.

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  • ReadMyLips88 ReadMyLips88 1 year ago



    – John Galt

  • Jason Morris Jason Morris 1 year ago

    This is the best summation of the new EEOC guidance I have seen since it was released last year. We have written extensively about it on our blog employeescreen.com/iqblog

  • timbo timbo 1 year ago

    We need more “Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations,” as well as “theft, dishonesty, and moral turpitude” in the workplace. Then we need free benefits for all and we should even provide insurance to people after they have a problem. We should have unchecked government surveillance over American citizens. We should use tax payer dollars to save institutions that make bad financial decisions. Would should allow one private bank to control the entire interest rate structure of the whole banking system. We should be able to kill american citizens without due process of law. Our lawmakers should be immune from prosecution and they should be paid salary and benefits for their entire lives. We need someone to tell us what to eat, what to drink, where we can go and who we should hire. We need someone to take our earned money from us and give it to someone else who does not want to work hard. Once we do all of these things and force many more things upon the population, everything will be fixed and all will be happy.

  • Nancy Rod Nancy Rod 1 year ago


  • Great article Daniel. The EEOC has certainly been overly aggressive and not very thoughtful about actual discrimination. Taken a bit more extreme, I wonder how the EEOC would look at jail time for convicted criminals – certainly applying jail time would be discriminatory for those who commit crimes compared with those who don’t, right? I recognize the EEOC has no jurisdiction here – I’m merely making a point about the nonsense of the EEOC’s conduct and thought processes. Surely, we can come up with a better way to award inclusion and minimize discrimination other than using the EEOC to exist as a federal agency.

  • Susan Adams Susan Adams, Forbes Staff 1 year ago

    You make compelling arguments, but the vast majority of job applicants with criminal records are not people who have been convicted of rape or murder. Bringing up those serious charges distorts the picture.

    The EEOC is concerned about employers making blanket exclusions for any kind of criminal record. In the PepsiCo case that spurred the EEOC to write the guidelines, the company rejected people who had been arrested but not convicted.

    In the BMW case, the government says the company that runs the warehouse was turning away applicants who had worked at the warehouse for years without incident, because of some long-ago offense that didn’t matter to the employer the first time around.

    About the federal government’s own hiring practices, you say the extent to which the government can exclude applicants with criminal records is “unclear.” I’m not a lawyer or former government official but I expect the government would hold itself to the same standard as the the rest of us: it has to show that an applicant’s criminal record has bearing on the job and consider how much time has elapsed since the offense and whether the applicant has gotten rehabilitation counseling or other services.

    The EEOC guidelines say it is indeed legal to exclude applicants based on their criminal records and even gives examples of permissible cases, like a community center rejecting a Hispanic applicant who, 18 months earlier, had plead guilty to credit card fraud. The job he wanted involved renting rooms and he would have had access to credit card and other financial information. The EEOC says the employer could lawfully reject this applicant.

    I don’t think the EEOC is requiring employers to “hire criminals.” Rather it is insisting that employers consider each applicant on his merits and not make sweeping exclusions that bar applicants whose criminal records have nothing to do with the potential job.

  • Daniel Fisher Daniel Fisher, Forbes Staff 1 year ago

    That would fit with principles in other areas, including freedom of expression: Find the least intrusive way of accomplishing the goal at hand. However, it is asking a lot of employers to match each felony with each job, and hope they get it right. Because we both know what happens when an employee assaults a customer and it turns out the employer was on record because of a prior conviction.

  • Thank you, Ms. Adams. Your take on this matter is correct. This blog’s arguments are based on fundamentally flawed premises, namely that 1) criminal background checks are “presumptively unlawful,” and 2) that you can no longer screen out applicants with a criminal background based on a job-related need.

    These decisions are not really changes in the law at all. They are an affirmation of already-existing disparate impact framework that has been in place for nearly 50 years. The EEOC is against “check the box” criminal background screenings, not job-related criminal background screenings. “Check the box” policies and making CBC’s a prima facie bar for employment can screen out everyone, many times including those who have been arrested but not convicted, those convicted of very minor offenses many, many years ago (why should a factory worker be screened out because he had one DUI 15 years ago and has been a great worker and citizen ever since, or think marijuana laws that are enforced in a highly disparate manner).

    The EEOC is simply requesting that background checks be done on an individualized basis considering whether the background creates a job-related reason not to hire someone–rather than blanket prima facie bars to employment. And if it’s not job related, that leaves the hiring practice open to the already-existing disparate impact framework. And yes, when marijuana use between whites and blacks is the same throughout the population, and yet blacks are convicted for marijuana crimes at four times the rate, then you get a scary effect of large-scale hiring discrimination that has no benefit to the employer.

  • And let me also add that the “job-related” burden is not, nor was it ever, a high one. The employer only needs to meet a “burden of production” to defend against any use of criminal background checks at all. The EEOC’s recent stance does not alter this at all. Essentially, employers can be as discriminatory as they want (from the impact perspective) as long as they can come up with a job-related reason for doing so and there is no equally valid but less-discriminatory alternative.

    I am glad to know that Mr. Fisher himself did not write this, because the blog entry’s concluions are fundamentally misleading at best. Misleading in a way that will certainly cause racial resentment in a dog-whistle sort of way. But it’s beyond the scope of my ability to speculate as to whether that was the intent or not, or whether it was simply a product of someone misunderstanding the law.

  • here here 1 year ago

    “why should a factory worker be screened out because he had one DUI 15 years ago”

    Speaking as someone that knows a person that is still dealing with health issues related to be hit by a drunk driver I disagree. They are still forced to deal with the bad decisions made by someone else that “choose” to drive drunk.

    If people don’t want to deal with the long term consequences of being a criminal they should not commit crimes.

  • Often, a serial killer has no felony record. So just because he is an armed guard and passed a rigorous background check doesn’t mean he isn’t a dangerous criminal. Lets take the Newton shooter for example he could have passed your background check would you want him working for you. How about the Batman movie killer who walked in the movie theater and killed dozens of innocent people. He too could have passed your back round check. Would if you had hired him to work in your business. So just because someone does or doesn’t have a criminal record you cant automatically assume they are a good or bad person.

  • Mass incarceration has become normalized in the United States. Poor folks of color are shuttled from decrepit, underfunded schools to brand new, high tech prisons and then relegated to a permanent under caste – stigmatized as undeserving of any moral care or concern. Black men in ghetto communities (and many who live in middle class communities) are targeted by the police at early ages, often before they’re old enough to vote. They’re routinely stopped, frisked, and searched without reasonable suspicion or probable cause. Eventually they’re arrested, whether they’ve committed any serious crime or not, and branded criminals or felons for life. Upon release, they’re ushered into a parallel social universe in which the civil and human rights supposedly won during the Civil Rights Movement no longer apply to them. For the rest of their lives, they can be denied the right to vote, automatically excluded from juries, and legally discriminated against in employment, housing, access to education and public benefits. So many of the old forms of discrimination that we supposedly left behind during the Jim Crow era are suddenly legal again once you’ve been branded a felon. 1 in 3 black men can expect to serve time behind bars, but the rates are far higher in segregated and impoverished black communities.Not by accident, the drug war/War on crime has been waged almost exclusively in poor communities of color, even though studies have consistently shown – for decades – that people of color are no more likely to use or sell illegal drugs than whites. Now that’s hard for many people to believe, given that the media image of a drug dealer is a black kid standing on the street corner with his pants sagging down.

  • bryn_b bryn_b 1 year ago

    My guess is you’ve never spent time in law enforcement, although you are quick to judge everyone in that field and make assumptions about what they do and how they do it. You also make overly generalized statements about minorities as well. I love the victim mentality you describe-that’s really helpful in working out the differences between the races and opening the lines of communications. According to you, all blacks are victims and all whites are perpetrators.

  • Well, murderers may end up working for you any way Mr. Fisher. Take this for an example. Neither the Batman movie killer ( James Holmes), or the recent Newtown shooter ( Adam Lanza) had a criminal record whatsoever. I also want to state that the list of these types of individuals who commit the most heinous crimes without any prior criminal activity is long. I just selected these two because they were the most recent and publicized. Anyway, Neither one of them were ever arrested or convicted of any crime, but are going down in history as two of the worst criminals the U.S. has ever seen. I make that point to show that the formula used in Back round screens to determine whether or not someone will commit a violent act at work are not very accurate. I say this because it would have given these two individuals a passing grade, but failed an applicant who had a petty drug conviction, a minor misdemeanor assault from a decade or more ago, or a simple theft arrest.

  • Mr. Fisher, you said: “According to the EEOC, an employer must show that its criminal conviction policy “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” But there are no statistical studies showing that a convicted rapist is more likely to embezzle funds from an employer or that a convicted embezzler is more likely to endanger fellow employees. No company can realistically meet this evidentiary burden.” That Mr. Fisher is exactly the point. There are no scientific studies that can justify a lifetime ban from “all” employers for “all” people with criminal convictions. However, there is empirical studies that show decisively that the risk of reoffending drops over time. (See) the works of Professor Alfred Bluemstein et al titled: “Redemption in an Era of Widespread Criminal Background Checks.”

    Mr. Fisher, you defeat your own argument when you use terms such as “CRIMINALS,” RAPIST,” “FELONS” AND “MURDERERS.” These are derogatory terms meant to reduce a persons humanity and civility. There are many people (which includes myself, social scientist, the EEOC and legions of advocacy groups) that believe that a person that committed a crime. A crime that may have nothing to do with the position that an employer may be trying to fill, and may have been committed “decades” in the past, should not have to forever explain the circumstances to which that crime was committed. The theory is one steeped in the Holy Bible. This “theory” is “forgiveness.” Another theory that must be considered in the process of hiring formerly convicted people is that a person that pays their debt to society, also pays that debt to employers.

    The purpose of “punishment” is to repay the debt.” This theory of “negligent hiring” that employers love to throw out there as a reason for their discriminatory practices does not hold water when stacked up against the facts. Fact No. 1: Employers would be no more “liable” for an employee with a criminal past (that commits a crime on the job) than an employee that does not have a criminal past. This is to say that if your employee assaults a customer on your premises, it really would not matter if that employee has a criminal past or not. “YOU WOULD BE LIABLE FOR THAT EMPLOYEE.” Fact No. 2: More “non-offenders” commit crimes on the job than former offenders. Since Blacks and Latinos are disparately impacted by these “Civil Death” policies, and the EEOC is already pivoting to the “removal” of the “box” on job application. Employers run the risk of civil litigation for violations of Title VII of the Civil Rights Act of 1964.

    The EEOC is strongly suggesting to employers that they 1. Remove the question from their applications. 2. Limit the inquiry to only those crimes that are relevant to the position you are trying to fill, and 3. Take into account the time that has passed since the crime and punishment. Not to mention any “rehabilitation” that can be demonstrated by the applicant. With the economy in bad shape, unemployment up and over “82 million” people in the United States with some form of criminal conviction on their public records, the tides of change in the practice of Civil Death are turning in favor of rehabilitation, inclusion and reconciliation. You cannot have a strong economy preventing over 1/4th of the American population from gainful employment. That would essentially be economic “suicide.” Is that what you are suggesting Mr. Fisher? And by the way Mr. Fisher, the EEOC “never” said that an employer could not do a background check. This litigation is about “blanket exclusions.”

  • Daniel Fisher Daniel Fisher, Forbes Staff 1 year ago

    One minor point. I didn’t write anything here, this is a guest post by two former government lawyers.

  • John John 1 year ago

    I should have every right to do a criminal background check if I were an employer. Screening is necessary. It protects you, your employees and customers from potential harm and lawsuits. Sure, I agree some people made a mistake and learned from it and moved on, but career criminals have no place on the workforce.

  • Employers will not be exposing their customers to ex-felons any more than those customers are already exposed to ex-felons anyway; no one is asking employers to make their businesses bastions of ex-felon communes. Employers regard their businesses as some types of fiefdoms, enclaves or oasis falsely believing that as business owners they have insulated themselves from the grim reality that there are at least 35 or more million ex-felons ranging from age 18 to 80 wandering about everywhere.

    Of what significance is excluding an ex-felon from employment when there are ex-felons wandering about your store all day anyway? Have business owners checked their customer base for previous convictions prior to letting them in through the front door? The idea of “I’ll sell to ex-felons but won’t hire them” is akin to the Old South’s “I’ll sell to blacks but won’t hire any” policies. There’s no room for this type of nonsense in America in the 21st Century!

  • C. Me C. Me 1 month ago

    “The federal government does it, why can’t we”…boo, boo, snivel, snivel. Well, because they’re the government and you’re not. Contrary to popular belief, for all you sheep that are jumping on the background check bandwagon- for shit jobs, people w/ criminal records aren’t just felons; some have misdemeanor pushing matches w/ crazy people. Do any of you realize just how easy it is for an average American, not rich or insulated, to get arrested and how overzealous prosecutors are; and underfunded public defenders are?! Do you know how many people actually get convicted of crimes that didn’t play out the way the ‘victim’ attested. But because public defenders and prosecutors defer to avoiding due process- because it costs money. Do you think that all these plea bargains are taking really bad guys/girls and slapping them on the hand? Have you ever considered that they might be innocent of the charge for which they’ve plead to; because a public defender encouraged them to take the lesser charge because if it went to court they might lose and go to prison? We think that because we know what happened and we’re telling the truth, that somehow right is on our side. But what if you’re in the accusers territory? What are you going to say then? Some of you, the rich, the insulated, the protected class are so incredibly detached with the way the other half lives. Let’s hope you never have to find out. And NO, I’m not a ‘minority’ (whatever that means any more). I’m a white woman.