Dec
5
2013
Consider the following hypothetical. You own a restaurant and you’re looking for an assistant to the head chef. The applicant needs to be able to cook, yes. But the position also requires administrative skills – ordering, inventory, relationships with vendors and staff. Creativity with the menu would be a plus. A woman comes with lots of relevant experience. You notice she has a six-month interruption in her resume in late 2004, early 2005.
Years ago, an interview might have sufficed; perhaps you would have called her references, or tried her out on a lunch shift. Today, in addition to the tryout and the references, you ask her to authorize a background check. In the meantime, she wows you on the lunch shift. Her plates look great. She cleverly rearranges the pans between orders. Then you get back her background check: she was convicted in federal court of conspiracy, obstruction of an agency proceeding, and making false statements to federal investigators. Does she get the job?
While the dark potential of our information age remains thankfully unrealized, the workplace remains a frontier of personal data collection and snooping. The ACLU claims that “it receives more complaints about privacy in the workplace than about any other issue.”
For workers, this unquenchable thirst for more information often first presents itself under the auspices of “background checks” (called “consumer reports”) required by employers. Where background checks were once the province of private investigators and reserved for high-level executives, now even low-wage workers are asked to authorize employers (and potential employers) to investigate their “character, general reputation, personal characteristics, or mode of living.” The trend is dangerous and often serves as the pretext for discrimination that would otherwise be prohibited under State and federal anti-discrimination law.
One of the most popular myths is that employers who screen candidates for credit histories and criminal records can reduce their potential liability from “bad hires.” Some courts have even adopted the rhetoric that background checks embrace a “common sense” approach because they help employers “better evaluate the trustworthiness, reliability, and effectiveness of prospective employees.” Yet, while other “common sense” claims hold up based on evidence of their truth, in this arena, employers have never even been asked for any proof that credit and criminal background checks increase retention rates, worker productivity, or diminish liability for negligent hiring or supervision.
In fact, consumer reports are notoriously flawed. The Federal Trade Commission and its successor, the Consumer Financial Protection Bureau, have claimed there may be as many as 42 million Americans with errors on their credit reports. But this is only part of the problem. Despite propaganda from the industry, race and gender result “substantial differences in credit scores across racial groups…with blacks and Hispanic whites having notably lower credit scores than other racial groups. These racial differences persist, even after controlling for other demographic characteristics such as age, marital status, and an estimate of income.” Though the law is still evolving in this area, denying employment on the basis of a bad credit history, therefore, may be tantamount to denying employment on the basis of race.
For workers with criminal histories, background checks present a more obvious and intractable problem. As a practical matter, criminal background checks are often harmful beyond the criminal conviction history they may include.
Like credit histories, they are frequently incorrect—sometimes the reports mix up identities (are you the same “Michael Miller”?), omit essential information about the offense or the disposition, or misstate charge levels or convictions. By the time such errors are challenged or corrected (companies have up to 30 days), employers have already moved on to the next applicant. This can also involve purely practical considerations: employers may understandably have difficulty sifting through charging codes, references to statutes, or interpreting dismissals and dispositions. Is it worth understanding a complicated report when a stack of “simple reports” offers a large enough applicant pool?
Or consider an individual who has had her record “expunged,” a process whereby the individual withdraws a guilty plea and the court dismisses the charges. Consumer reporting agencies often unlawfully report both the conviction and the dismissal, which they then claim is “factually accurate.” One can fairly ask what purpose the expungement serves if it fails to shield the conviction from later disclosure.
As the government grows more opaque, criminal records have become more public. The increase in computerized public records has made background checks easier and cheaper to obtain. What once required a trip to the courthouse is now accomplished by a few seconds at the keyboard. Consumer reporting agencies use sophisticated databases to package, market and sell criminal record information and credit histories to anyone with curiosity and a credit card.
This isn’t to suggest that childcare providers shouldn’t have access to criminal records of convicted child abusers, or that employers should not be able to discuss resume gaps with applicants and evaluate a potential employee’s record on a case-by-case basis.
Ultimately, given the over-representation of African Americans and Latinos in the criminal justice system, using criminal background histories is itself a race-conscious undertaking. This alone should give employers pause. Blind reliance on background checks of dubious reliability used to prescreen applicants only encourages discrimination. More importantly, it denies willing and capable workers, including ex-offenders, the opportunity to make an honest living.
About Christian Schreiber
Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.
