Will restricting criminal background checks actually increase minority unemployment?

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Actions with the best intentions do not always result in the expected outcomes.

Currently, in an effort to lower minority unemployment and reduce discrimination, the Equal Employment Opportunity Commission (EEOC) is considering restricting or, in the most extreme case, eliminating the ability of employers to consider criminal background checks in hiring.

The commission has held two hearings on the matter with little fanfare, but great support from watchdog groups which argue that since African Americans and Latinos have higher arrest and conviction rates than whites, criminal background checks unfairly inhibit those protected classes’ job prospects.

Advocates for keeping the criminal background check guidelines in their current form have noted that the hearings the commission has held have leaned in favor of restricting employers’ use of background checks — as a way to increase employment in sections of the population hit hardest by the economic downturn.

Despite charges of bias, the EEOC has maintained that the hearings displayed a wide variety of perspectives.

“Our panelists at the meeting included leading defense-side employment lawyers, neutral academics, government experts, as well as employers with positive experiences in hiring individuals with criminal records — one of which was a major corporation in the hospitality industry — and advocates,” EEOC spokesperson Justine Lisser told TheDC. “We’ll let this broad array of viewpoints represented speak for itself.”

According to a letter from three members of the U.S. Commission on Civil Rights (USCCR), however, the hearings failed to consider recent scholarly papers challenging the assumption that the use of criminal background checks would lead to lower hiring of African Americans.

Civil Rights Commissioners Peter Kirsanow, Gail Heriot and Todd Gaziano pointed to research from economists Harry Holzer and Stephen Rafael and public policy professor Michael Stoll, published in the Journal of Law and Economics, which showed that employers with access to background checks are actually more likely to hire African Americans, especially African American men, than those without access to that information.

“Their results suggest that, in the absence of criminal background checks, some employers discriminate statistically against black men and/or those with weak employment records,” the commissioners pointed out in their letter to the EEOC.

They further noted that another study conducted by Stoll, published in the University of Chicago Legal Forum, found that in the absence of criminal background checks, employers were more likely to discriminate using age or race as statistical indicators of past activities.

“Stoll found that for employers that check backgrounds, about 12 percent of their last hired workers were black. While the comparable figure for those employers who do not check is 3 percent, a difference of about 9 percentage points,” the three commissioners wrote, adding that “Stoll indicates in his paper, these findings indicate the use and effect of criminal background checks on hiring of ex-offenders and the employment of black workers is far more nuanced than previously thought.”

Kirsanow, Heriot and Gaziano recommended in their letter that the EEOC convene another hearing to focus specifically on the data they present in their letter. The USCCR considered holding their own hearings on the matter, but the proposal was rejected in a 4-4 vote.

Commissioner Kirsanow, a labor lawyer by trade, told TheDC that the EEOC needs to examine the negative impact that changing the guidelines could have on minority employment.

“The differential, at least in terms of the Stoll study, is that black males are 8.9 to 9 percentage points more likely not to be hired where criminal background checks are not available. That’s a significant percentage. I think the latest unemployment figures for blacks, as a whole, is 16.9 percent,” said Kirsanow.

“Just this one factor could cause the unemployment rate to stay high or go higher,” he added. “Somebody really needs to take a look at this. You know, it’s in many respects, at least for those at the EEOC this kind of evidence is counter-intuitive for them, at least in terms of their worldview.”

The EEOC did not go into detail about their correspondence with the three USCCR members, but noted that they will consider all the evidence submitted during their comment period over the summer.

“The EEOC is still reviewing the testimony and statements from the meeting and all the materials received afterwards,” Lisser told TheDC. “We will give careful consideration to all the information sent in by members of the public, stakeholders and other interested parties.”

The EEOC has not provided any timetables for their final decision.

*This article has been updated to provide more detail about the concerns of Commissioners Kirsanow, Heriot and Gaziano.

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