Should Criminal Background Checks Be Restricted?

criminal background checksThere is no bigger HR debate these days than government imposed restrictions on criminal background checks.  The EEOC, without public comment, has issued 52 pages of guidance on the restricted use of arrest and conviction records in employment decisions. Thanks.  Certainly the 5 members fairly represent the hundreds of thousands of employers, employees and security and  HR professionals.

The EEOC believes that widespread criminal record checks violate Title VII of the Civil Rights Act of 1964.  However, the law does not list criminals as a protected class.  A bit of a disconnect.

We should not be shocked by this decision.  Our culture has been removing moral absolutes and dismissing personal responsibility for quite some time.

As a parent of 5 kids, I am constantly discussing (my kids might say lecturing) the consequences of bad decisions.  I talk about the information they post online for the world to see.  Forever.  Those things do not disappear.  There may be consequences down the road (or when dad does his daily check).

We all make bad decisions.  Some of these bad decisions have a short shelf life.   Forgive and forget.

If I make a decision to speed and get a ticket then I accept the short-term pain of paying the ticket (yes,I was stopped recently but thanks Mr. Officer for the warning).  Other decisions we make can have a much longer impact on our lives.  Possibly for a life time.

Now hang tight if you are one of the "friends of ex-felons" who routinely post comments on my articles while hiding behind false names and fake email addresses.  Read the entire article.

As much as you want to paint me as a rigid ex-detective who has a black and white perspective on life, you are wrong.  I have participated in prison ministries and currently sit on the board of Outreach in Indianapolis which is a ministry that serves homeless teens.   Homelessness cannot be solved by economics alone, it has a much larger social implications that involves drug abuse, crime and violence.

Some of these young adults are paying a high price for bad decisions.

Why do I volunteer my time to work with Outreach?   I believe these young men and women can and want to make better life choices.   That God has a plan for their life.  Yes, bad decisions may have derailed the plan but they can get back on track and are capable of contributing to society in a big way.

More than 15 years ago, while a violent crime detective, I befriended a man through a prison ministry.  Dan had been involved in a horrendous crime that was committed in the small community I grew up in.  A crime my father worked as a state police officer.  A crime committed against a family that my family knew and knew well.

On my first visit with Dan, he had mentioned that they had driven past my home that night and joked about killing a state trooper and his family.  Yikes.  Talk about a lump in my throat.  That was me and my family.

My dad, as a trooper and a caring human being, had spent years trying to steer Dan away from a sociopath he was running with.  My dad's final prophetic words to Dan were "this guy is going to take you down a road you will not be able to turn back from."

Some bad decisions will impact us for a lifetime.

Dan and I have had some deep philosophical discussions on crime and punishment.  I told Dan that God forgave him the minute he confessed his sins but that the State of Indiana never would.

Dan is 35 years into 2 life sentences.

If Dan were to be released from prison, are their jobs for him?  Could he be a productive member of society? Yes, absolutely.

Are there positions that he will not qualify for because of his choice to commit an atrocious crime?  Yes, absolutely.

So it brings us back to our current reality with the EEOC and the restricting of criminal background checks.  This is not a black and white issue.

We cannot create a "guide" that works for every person or scenario.  And legislating away the use of criminal record checks will have significant consequences for employers, employees and society.

We cannot discount 25 years of studies that confirm high recidivism rates among offenders (many of which pre-dated the proliferation in criminal background screening).  No matter what the EEOC says, a person’s decision to use violence, to rape, to shoot, to kill, to abuse is not based on their lack of employment.  It is often rooted in a deeper need to assert power and control.

Do I believe employment is important for ex-offenders?  Absolutely.  It is important for never-offenders also.

The greatest stumbling block for ex-offenders is still poor choices.  Just as a person makes a choice to use violence….and they do make the choice to use violence…they can also make the same choice to be crime free.

So where does that leave us?

First, employers cannot be placed at greater risk of violence and negligent hiring lawsuits because the EEOC mandates deep restrictions on employers use of criminal records.

Second, the EEOC should focus more energy and money on education and training of employers.  Help employers develop policies on criminal background checks that are not zero tolerance policies.

Zero tolerance does not and never will work.

Help employers understand the importance of the following 3 questions:

  • What is the nature of the crime?
  • How long ago was the crime committed?
  • And how does the crime impact the position?

Yes, that means that some offenders may be blocked permanently from certain positions i.e. a school will not hire a sex offender.

At the same time, education will correlate to more ex-offenders getting second chances to make the right choices.  This will not be accomplished by a blanket restriction on the use of criminal background checks.