Need Not Apply: The Racial Disparate Impact of Pre-employment Criminal Background Checks - II. THE FAIR CREDIT REPORTING ACT: THE BACKDROP OF A DISCRIMINATORY EMPLOYMENT PRACTICE

Parent Category: Basic Needs

Category: Employment Issues

Roberto Concepcin, Jr.

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II. THE FAIR CREDIT REPORTING ACT: THE BACKDROP OF A DISCRIMINATORY EMPLOYMENT PRACTICE

Congress enacted FCRA to, in part, protect consumers from the abusive practices of lenders and consumer reporting agencies. The purpose of FCRA is to require that consumer reporting agencies adopt reasonable procedures ... in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of [consumer] FCRA defines consumer report (commonly referred to as credit report) to mean:

[A]ny written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for ... employment purposes ....

In the employment context, FCRA permits a consumer reporting agency to furnish a consumer report [t]o a person which it has reason to believe ... intends to use the information for employment But FCRA's protections extend beyond an individual's credit history to include criminal records. FCRA provides that a consumer report may not contain records of arrest or [a]ny other adverse item of information, other than records of convictions of crimes, which antedate the report by more than seven FCRA does not make such an exception for records of criminal convictions. Thus, an employer may procure a prospective employee's consumer report with a criminal conviction that occurred decades before the date of the report.

Employers interested in procuring a consumer report for the purpose of evaluating a consumer for employment, promotion, reassignment[,] or retention as an are required to provide advanced written notification to the job applicant and obtain written authorization from her. If an employer decides to use the findings in the consumer report either in whole or in part to take an adverse action, which includes a denial of employment or any other decision for employment purposes that adversely affects any current or prospective then the employer must provide the current or prospective employee with a copy of the report as well as a description of her rights before taking that adverse action. Although a current or prospective employee must authorize the procurement of a consumer report, employers are allowed to condition employment on her written authorization to procure such a report. The current legal regime, as a result, has permitted the securing of criminal background checks to develop into the widespread practice it has become.