The U.S. Equal Employment Opportunity Commission (EEOC) recently announced their 2012-2016 strategic plan to focus more on “systematic litigation”. The plan passed by a 4-1 vote with the lone dissenter voicing concerns with the heavy focus on litigation instead of education and outreach. The strategic plan is about as clear as mud. However, the EEOC focus appears to be on cases that have a “broad impact of an industry, occupation, business or geographic area.”
Naturally, as I read through the plan, I was wondering how this will impact employment background checks?
I think it is just a continuation of a course the EEOC has been traveling for quite some time. They made it clear this past July during their public meeting on the use of criminal records that they have great concerns with the proliferation of criminal background checks and how that impacts ex-offenders.
Unfortunately, the July meeting was a little lopsided as the only voices heard were those of organizations that work with recently released prisoners. Clearly absent from the meeting was the voice of victims of crime and employers who have been impacted by violence in the workplace.
Do we really want to elevate ex-offenders to a protected class status?
Ok, before the barrage of anonymous comments (and I do find it hypocritical to reply anonymously if you are so passionate about your position) I want to say that I am 1 zillion percent in favor of quality programs that help prisoners achieve the status of ex-offenders. Really. I have served on prison ministries and our churches homeless ministry where I see the impact of a life of addictions, crime and unemployment.
However, nearly half of all prisoners released each year will be back in prison with 3 years. This has not changed over the past 15 years.
Obviously the criminal justice system does a poor job of rehabilitation. And many of the programs designed to help prisoners re-enter society have had little success.
Let’s be honest, if it was so simple as to pinpoint one thing as the cause, then we could convert all of our recently released prisoners to ex-offender status. Unfortunately for us and future victims, more than half of prisoners released each year are not ex-offenders, they are continued offenders.
Does gainful employment play a role in the helping an offender transition back into society? Absolutely! And I don’t think you would find many dissenters.
But I also know that the increase use of employment background checks is not the root cause of ex-offender recidivism. I am not drinking the Kool Aid.
I have had a front row seat and witnessed the death and destruction of violent offenders over the past 20 years. And for more than 20 years, the FBI behaviorists have found that the best indicator for future violence is a past history of violence.
So the argument that the widespread use of criminal record checks has had a disparate impact on ex-offenders is not grounded in research. There has been little movement in recidivism rates in the past 15 years. Yet the number of employers conducting criminal background checks during this same period has more than doubled. So if the employment argument were true, should we not have seen an explosion in recidivism?
Dr. Samenow and Dr. Yochelson have researched criminal offenders for more than 30 years and developed programs to challenge and change the thinking errors that are common with offenders. The following, according to Samenow and Yochelson, are common to all criminals:
- The criminal is very fearful;
- The criminal must cut off both internal and external deterrents in order to commit crime;
- The criminal is a predator who pursues power and control;
- The criminal demands to be identified as the “unique number one person” in all that he does, having never learned to fully function independent of others;
- The criminal feels “put down” and becomes angry when he does not get his own way, making him more relentless in pursuit of his goals using stealth or force to accomplish them; and,
- Except in the planning of a crime, the criminal fails to think long range
Samenow and Yochelson’s theory of thinking errors asserts that employment is used by the criminal to combat feelings of worthlessness by making him feel important.
So where does that leave us? We have to understand that criminal behavior is extremely complex and cannot be reversed by simple, quick-fix policies such as limiting criminal background checks.
As employers, we also have to understand where the EEOC is going. The recent $3.1 million Pepsi settlement is a great prologue.
We, as employers, also have a responsibility to use criminal background screening correctly. It is critically important for us to review our policies and make sure we do not have “zero tolerance” criminal record policies. We should follow this guide:
- What is the nature of the crime?
- How long ago was the crime committed?
- How does the crime impact the employment position?
This is such a “hot button” issue. Let me know your thoughts on balancing protecting your organization and protecting yourself from EEOC claims.