Employers often screen job candidates for criminal backgrounds. One reason: If an employee on the clock commits a crime or causes an accident due to drug use, the employer could be dragged through an expensive lawsuit by any victims. In tort law, “negligent hiring” is a cause of action by which the employer is held responsible for harms committed by an employee if the employer knew or should have known that the employee was dangerous. One of the best defenses against such a lawsuit is to demonstrate due diligence in hiring practices, including background checks.
Meanwhile, the Equal Employment Opportunity Commission (EEOC) is aggressively punishing employers who use criminal checks as hiring filters.
In January 2012, for example, Pepsi settled with the EEOC for $3.13 million. An EEOC press release explained that “Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.” The background check was deemed to be a violation of Title VII of the Civil Rights Act of 1964. Pepsi also agreed to offer jobs to blacks and amend its hiring practices.
The EEOC is applying the theory of “disparate impact.” A standard definition of the term is the “adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.” In short, a hiring practice that is racially neutral in its content, application, and intent is still legally discriminatory if it adversely affects one race more than another. The EEOC views criminal background checks as discrimination against blacks solely because of their racial impact.
The Why Behind the Impact
The EEOC began to focus on the disparate impact of criminal background checks in 1987 with a policy guide that stated, “It is the Commission's position that an employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”
But the key question has not been addressed: Why are blacks and Hispanics incarcerated at higher rates?
Black in Prison
The United States imprisons more people per capita than any other nation; it accounts for 5 percent of the global population and 25 percent of its prisoners. As of year-end 2011, the Bureau of Justice (BOJ) reported “about 1 in every 107 adults was incarcerated in prison” and “about 1 in every 50 adults . . . on probation or parole.” In total, “1 in 34 adults” or 6,977,700 people are “under some form of correctional supervision.” The total does not include people no longer under supervision who have a criminal record. The cumulative total represents a significant portion of those who are or will be seeking employment.
A prison record acts as a powerful barrier to being hired, especially in a tight job market in which employers can pick and choose. The prison experience also harms job prospects because it imprints antisocial attitudes that make it more difficult to function well in society.
According to the Bureau of National Statistics, the official unemployment rate for February 2013 fell to 7.7 percent; the unemployment rate for whites was 6.8 percent; for blacks, it was 13.8 percent.
The higher black unemployment rate is largely due to their higher rate of incarceration. According to the Population Research Bureau, in 2010 black men were incarcerated at a rate of 3,074 per 100,000; white men were incarcerated at 459 per 100,000.
The drug war deserves much of the blame. Drugs had been illegal for decades, but the all-out war against them exploded in the wake of the Vietnam War (American involvement 1961–1973), which introduced a new generation of young Americans to substances such as heroin. In a 2011 infographic on the drug war, the American Civil Liberties Union reported that the “US prison population rose by 700 percent from 1970–2005, a rate far outstripping that of general population growth.”
The drug war is the cause.
Criminalizing nonviolent and victimless behavior has made the prison population swell. In 2009, the civil libertarian organization Stop The Drug War reported Bureau of Justice Statistics data that indicated “in the federal prison population, drug offenders made up a whopping 51% of all prisoners, with public order offenders (mainly weapons and immigration violations) accounting for an additional 35%. Only about 10% of federal prisoners were doing time for violent offenses.” In other words, 90 percent of the federal prison population was "guilty" only of victimless crimes—that is, "wrong" behavior. Yet their employment future has been devastated. If the EEOC is truly concerned with the disparate impact of criminal background checks, then it should call for an end to the criminalization of drug use.
Other government programs are responsible for black unemployment as well, including the minimum wage and the welfare state. Economist Thomas Sowell wrote,
Liberals try to show their concern for the poor by raising the level of minimum wage laws. Yet they show no interest in hard evidence that minimum wage laws create disastrous levels of unemployment among young blacks in this country . . . .
The black family survived centuries of slavery and generations of Jim Crow, but it has disintegrated in the wake of the liberals’ expansion of the welfare state. Most black children grew up in homes with two parents during all that time but most grow up with only one parent today.
These policies are intimately connected to higher incarceration rates. By encouraging welfare dependency, especially for single mothers, the government constructs a vicious cycle of poverty. Meanwhile, minimum wage laws ensure that employers can afford to hire fewer workers. By forbidding black youth from working below minimum wage, the government leaves them few options beyond welfare or illegal activities, such as dealing drugs. The desire to escape the brutality of welfare-poverty also prompts drug use. Then, both the dealing and the use lead to imprisonment. If the EEOC is truly concerned with the disparate impact of criminal background checks, it should also call for an end to the minimum wage and to welfare.
There is a bitter irony to cases such as Pepsi's. The EEOC is posing as the cure to a problem that government itself created and seems determined to make worse. Government postures as a protector of justice and minorities when it is a great violator of both. Then the responsibility for soaring black unemployment is shifted onto the shoulders of business, which could be the solution if unfettered. It isn't. Instead, employers are called “racist” for scrambling to avoid the ruinous lawsuits that result from an increasingly hostile set of laws. If criminal checks have a racial impact, then it is government that is responsible.