Update From EEOC on Use of a Criminal Record Check

criminal record checkWell, if you have you been holding your breath, waiting on a ruling from the July 26, 2011 EEOC meeting on employers use of arrest and conviction records, you can exhale.  No big surprises. Honestly, there were no decisions made last week.  The meeting served as a platform to release a statement as opposed to a formal discussion.

There was a parade of one-sided testimonies.  Primarily programs working with recently released prisoners and attorneys advocating more limitations on the use of a criminal record check for employment purposes.

Clearly absent from the meeting was testimony from employers who have been impacted by violence in the workplace.  We did not hear from employers who have settled negligent hiring claims because they had not done enough pre-employment screening.

Yes, there was plenty of discussion about cheap background checks.  The FBI’s criminal database came under fire as it was estimated that it contained fewer than 50% of all criminal records.

It is ironic that the FBI database would be the subject of discussion since it is the same federal government that year after year passes laws requiring industries to use this database for employment screening with no requirements that the information be verified.

Private companies cannot access the FBI database without federal and state legislation.

Surprisingly, there was little mention of the Fair Credit Reporting Act and the protections it provides to consumers. How it requires background screening firms to validate information and employers to follow a two-step process when taking adverse action so an applicant can see what is being used against them.

What I did hear was that the proliferation of criminal records checks is to blame for high offender recidivism rates.  We have just gone through one of the worst economic times in recent history and honest, law abiding citizens did not covert to a life of criminality in high numbers because they were laid off or displaced.

Where does personal responsibility and good decision making fit into this?  Dr. Yochelson’s and Dr. Samenow’s groundbreaking research on offender thinking errors is right on and has been used successfully to work with offenders.

They do not mention unemployment on their list.

Offenders first have to change the way they think.

The reality is study after study on offender recidivism rates in the U.S over the past 25 years has found the same thing:  nearly half of all offenders were back in prison within three years (U.S. Department of Justice BJS study ).

Studies on sex offenders have found as many as 1/3 are re-arrested for another sexual crime.  How does that correlate with feeding their family or unemployment?

It doesn’t.  It is a crime of power and control.  And study after study indicates there is little hope in changing the behavior of a sex offender.

FBI behaviorists have proven for years that the best indicator for future violence is a past history of violence.  Notice they did not say that the best indicator for future violence is not finding a job.

Yet, you want me to believe that an employer’s use of a criminal record check is the central stumbling block to a life of personal responsibility?  I don’t buy it.

Oddly enough recidivism rates have not gone up over the past 15 years.  They have actually remained about the same.  However, pre-employment criminal background screening has exploded during this same time period.

It is not a yin and yang.

Now, let me say from years and years of research, I get how critical a job is to ex-offenders.  It is an important piece of a large pie that starts with quality programming while incarcerated.

There is a right job for everybody.  There are also jobs that will be impacted by bad decisions we make.

I have trained with professionals who work with offenders and have studied Yochelson’s and Samenow’s Thinking Errors.  I believe in the program.

I have spent 20 years working to end violence and this does include working with perpetrators to change their ways.  That is code for changing the way they think and their belief systems.

However, the EEOC needs to understand that we do not have to restrict criminal background screening to make ex-offenders successful.  We can have our cake and eat it too.  Comprehensive criminal background screening and ex-offender re-entry programs can work hand in hand.

Our policies should NEVER deny employment simply because somebody has a criminal record.    We have to use common sense and sound policies to determine:

  • The nature of the crime committed;
  • How long ago it was committed;
  • And how that crime impacts the employment position.

We can do our part by insuring this 3-pronged approach is applied to each hiring decision.  The federal government can do their part by offering quality programming for offenders.  We need more re-entry programs that “integrate” an offender back into society and doesn’t just drop them off on a street corner.  The Indiana Department of Corrections partners with employers and provides a 2 year program to help a select group of offenders successfully re-integrate into society.

There are no simple fixes to offender re-entry.  Look at the past 30 years.

Ok, I admit I probably should have had a cup of java before I got on my soap box this morning.  Sorry.  Well, not really.