Personality Tests' Fairness, Effectiveness Questioned


Lawsuit Raises Novel Question About Off-Site Employee Surveillance


Internet Background Checks Put Jobs Out of Reach for Many

Even minor contact with the criminal justice system — such as an arrest without a conviction, or a misdemeanor offense — can now follow job applicants wherever they turn, thanks in part to the availability of online services that allow employers to do pre-employment criminal background checks. As many as 100 million Americans now have a criminal record, reports the Center for American Progress. The combination of cheap online searches with permissive federal and state policies all too often turns minor misconduct, or even administrative mishaps, into life-changing events.

Today, it is commonplace for employers to inquire as to an applicant’s criminal history – some ask about it in applications and an estimated 87% of employers conduct criminal background checks. In fact, federal law requires such checks for jobs like security screeners at airports or child care providers at federal facilities. Eligibility rules for some state jobs also require such checks.

Background checks are often conducted by commercial vendors, whose databases can be inaccurate or out of date (for example, they may still carry a record that has been expunged). The checks may also include arrest records that never led to convictions, or involve mistaken identity. Criminal background checks are a particular problem for people of color, who are arrested and incarcerated at rates disproportionate to their percentage of the general population.

According to a report by the Institute for Research on Poverty, many employers are wary of hiring candidates with criminal histories, even when the law allows it, because they think that such employees are untrustworthy, or they fear liability for the employee’s possible future actions. Only 12.5% of employers surveyed for the report said they would definitely consider hiring an ex-offender. Moreover, a study by Harvard sociologist Devah Pager found that even among those with a criminal history, there is a racial disparity: African-American ex-offenders in her study received callbacks or job offers less than half as frequently as white ex-offenders. Jeffrey Menteer, an applicant who served 6 months for gun possession, told the New York Times “I don’t really blame [employers], but I wish they’d be a little more open-minded… people do change.”

Fortunately, a new wave of “fair chance” hiring laws and policies are restoring the chance for ex-offenders to find employment. The Vera Institute of Justice reports that at least 14 states (plus DC) have adopted “ban the box” initiatives which “urge employers to screen candidates based on job skills… before looking into an applicant’s criminal history.” Moreover, in 2012 guidance, the Equal Employment Opportunity Commission (EEOC) noted that national data showing the difference in arrest and incarceration rates between races could support “a finding that criminal record exclusions have a disparate impact based on race and national origin,” potentially rendering an employer liable for violating Title VII of the Civil Rights Act. Laws like these can help all of us, and not just by reducing recidivism and all its attendant costs. “Now such a large fraction of the population is affected that it has really significant implications, not just for those people, but for the labor market as a whole,” Devah Pager told the New York Times.

We'd love to hear from you. Send us an email: