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Roberto Concepcin, Jr

Reprinted with Permission: Roberto Concepcin, Jr., Need Not Apply: The Racial Disparate Impact of Pre-employment Criminal Background Checks, 19 Georgetown Journal on Poverty Law and Policy 231 (Spring, 2012) (176 Footnotes Omitted)


The current economic downturn, characterized by the most devastating recession in generations, continues to transform the employment application process into survival of the fittest. Employers are increasingly using criminal background checks, a permissible practice under the Fair Credit Reporting Act (FCRA), as a litmus test to weed out applicants allegedly more prone to counterproductive work behaviors. However, this practice is resulting in the further branding of former criminal offenders with the mark of a criminal

The story of Gene Mays vividly illustrates the collateral consequences of an arrest or conviction discovered through a criminal background check. Gene, convicted of drug felonies in 1988 and 1994, applied for a position as an electrician with the City of Cincinnati in 2007. In his application, Gene disclosed his convictions and provided compelling evidence of his rehabilitation: he had remained drug-free for over a decade; maintained a steady work history; completed a five-year electrician apprenticeship program with a local union in 2006, graduating first in his class with a 98.2% average; and received an excellent rating by supervisors at his three apprenticeship placements in all ten categories of his evaluation. Despite Gene's evidence of rehabilitation, Cincinnati's Civil Service Commission and Metropolitan Sewer District denied him employment based on drug felonies which were then thirteen and nineteen years old, citing the city's blanket ban on hiring former criminal offenders. Although the City initially offered Gene the position, the City revoked its offer and removed him from the City's list of eligible workers.

Although employers have offered seemingly rational arguments for the use of criminal background checks, research has shown that there is a point at which redemption occurs, i.e., where the risk of reoffending subsides to the level of the general population. But more importantly, research has shown that former criminal convictions are not a valid predictor of counterproductive work behavior. This research, combined with evidence that racial minorities are more likely to have higher incarceration rates, suggests that the employment of criminal background checks as a screening mechanism can have a disparate impact on racial minorities in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, a position the Equal Employment Opportunity Commission (EEOC) has long asserted. Because criminal background checks are, for the most part, neither job-related nor consistent with business necessity as required by Griggs v. Duke Power and its progeny, using them to sort out the fit job applicants from the unfit should be prohibited.

This Article proceeds in several parts. Part II explores the purpose of FCRA and the requirements imposed upon employers interested in procuring criminal history reports, which contain records of arrests and convictions, for the purpose of evaluating a job applicant. Part III examines the statutory framework of Title VII and explores the disparate impact that the use of criminal background checks has on racial minorities, who, on average, have higher incarceration rates. Part III also discusses case law grappling with the issue of whether criminal background checks violate Title VII and suggests that such policies are neither job-related nor consistent with business necessity. Part IV recommends the enactment of legislation amending FCRA to prohibit the use of criminal background checks in the employment context.