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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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450,000 minority job seekers alleged race bias in background checks
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The U.S. Census Bureau agreed to settle a lawsuit claiming that the agency discriminated against black and Hispanic job applicants with arrest records when it conducted criminal background checks during the hiring blitz for temporary workers leading up to the 2010 census.
In addition to paying $15 million to settle the suit, the Census Bureau is also required to hire industrial organizational psychologists to design new criteria for criminal background checks for the 2020 census to limit disparate impact on job applicants. Of the settlement money, $5 million will be used to notify class members of the lawsuit about upcoming jobs for the 2020 census and to help fix errors in their criminal records, while the remaining $10 million will pay attorney’s fees, litigation costs and expenses.
The Census Bureau admitted to no liability under the proposed settlement.
“The big takeaway for employers is that if even the U.S. government can get sued for the unfair use of criminal records, then private employers need to take this issue very seriously,” said Les Rosen, an attorney and the CEO of Employment Screening Resources, a background screening firm based in the San Francisco area. “This should also be a wake-up call for employers to carefully differentiate between an arrest that did not result in a conviction, and an actual criminal conviction where there has been a factual finding about the underlying behavior.”
Background of the Case
The Census Bureau sought to fill more than 1 million temporary positions nationwide to conduct the 2010 census. The hiring process required a criminal background check, where applicants’ biographical information was run through the FBI database. If an arrest record popped up, the Census sent a letter to the applicant asking him or her to provide “official court documentation on any and all arrest(s) and/or conviction(s)” within 30 days. Those applicants who disputed that they had an arrest record were advised to submit a set of fingerprints.
The plaintiffs sued in 2010, alleging that those procedures violated Title VII of the Civil Rights Act of 1964 because they “are neither job-related nor consistent with business necessity, and disproportionately preclude African-Americans and Latinos” because those groups “have higher arrest and conviction rates than Caucasians.”
The suit stated that the hiring requirements caused approximately 700,000 job applicants with an arrest record of almost any kind to be excluded from being hired for Census jobs. The suit also stated the Census Bureau background checks excluded people “with old and minor convictions” which were irrelevant to the job.
An estimated 30 percent of working-age Americans have some type of criminal record, according to figures from the Department of Justice.
“To end the cycle of mass incarceration, we must eliminate discriminatory and unfair barriers to re-entry faced by people with criminal histories,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “This important settlement helps send a strong message to other employers that no job seeker should be automatically excluded from consideration for a job solely because of a criminal record.”
According to the Equal Employment Opportunity Commission (EEOC), employers may violate Title VII if their policies have a disproportionate adverse impact based on race, national origin or other protected categories, and if employers cannot demonstrate the business necessity of such policies.
“Even if an employer makes a reasonable judgment that a criminal record should exclude a particular individual, the EEOC is clear that each applicant should have a meaningful opportunity to be assessed individually on the basis of who they are, and not just be lumped into the broad category of being a criminal offender,” Rosen said.
The 2012 EEOC guidance on the use of criminal history in hiring calls for a process of individualized assessment, where rejected candidates can make their case to demonstrate facts about the offense or about their lives that shows they should be given a second chance.
Rosen said employers should consider, among other things:
He said that ultimately, “employers need to be mindful of a need to demonstrate that the behavior underlying a criminal matter is demonstrably job-related or creates such a high risk that the employer has a business necessity not to hire the person.” Cases in which criminal records turn up in background checks, especially if they are for minor convictions, are old or are irrelevant to the job, need to be handled with extreme caution, he added.
Roy Maurer is an online editor/manager for SHRM.
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