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Berlin, Ocean Pines News Worcester County Bayside Gazette Logo Berlin, Ocean Pines News Worcester County Bayside Gazette


Common sense remains in courts

judge’s ruling last week that upheld the ubiquitous and evenhanded practice of
criminal background checks before employment signals that some measure of
common sense still has a place in the nation’s courts.

In a strongly worded
opinion, U.S. District Judge Roger W. Titus dismissed the U.S. Equal Employment
Opportunity Commission’s attempt to cast the use of pre-employment background
checks as a discriminatory hiring practice, saying that the commission did not
present reliable evidence of a disparate impact resulting from any specific

“Merely pointing to
‘statistical disparities in the employer’s workforce’ is not sufficient; the
plaintiff must provide statistical evidence of a kind and degree sufficient to
show that the practice in question has caused the exclusion of applicants for
jobs or promotions because of their membership in a protected group,” Titus

(Ironically, the EEOC
itself, Titus notes, conducts criminal background investigations as a condition
of employment for all employees and conducts credit background checks on
approximately 90 percent of its positions.)

At issue in this case is
Title VII of the Civil Rights Act, under which some hiring policies can be
unlawful if they have a disparate impact on the basis of race, color, religion,
gender or national origin. In its complaint, the EEOC noted that criminal
background checks (in part because of a problematic criminal justice system)
have such an impact on blacks seeking employment.

But the evidentiary
standard in disparate impact claims is rightfully set very high, and the
existence of broad societal problems, coupled with an admittedly imperfect (and
in some ways biased) criminal justice system do not come close to meeting the
bar needed to indicate an unlawful practice.

In his ruling, Titus
found fault with the EEOC’s expert’s analysis of the data to prove disparate
impact, but more importantly noted that it is not enough for the plaintiff to
show that “in general” the collective results of a hiring process cause
disparate impact. Statistical analysis must isolate and identify a discrete
element in the hiring process that produces the discriminatory outcome.

“The story of the
present action has been that of a theory in search of facts to support it,”
Titus wrote. “… By bringing actions of this nature, the EEOC has placed many
employers in the ‘Hobson’s choice’ of ignoring criminal history and credit
background, thus exposing themselves to potential liability for criminal and
fraudulent acts committed by employees, on the one hand, or incurring the wrath
of the EEOC for having utilized information deemed fundamental by most

The bottom line is that
the EEOC lawsuit rightly notes some of the longstanding problems regarding
racial disparity in the United States, but going after an employer, rather than
the roots of the issues, clouds the matter and creates even more tension
between conservative and liberal views on this topic.

If it can be productive
in any way, the EEOC’s case could reinvigorate stagnant conversations about
racial disparity in the criminal justice system (nationally, the imprisonment
rate for blacks is 2,300 per 100,000 people, while for whites, it’s 412 per
100,000 people, according to The Sentencing Project; in Maryland, those numbers
are 1,580 per 100,000 for blacks and 288 per 100,000 for whites).

The case could also spark
serious discussion around better ways to reintegrate people with criminal pasts
into the mainstream workforce. Numerous studies indicate that employment is a
key component in reducing recidivism and there are plenty of anecdotal success
stories where employers have found highly fruitful relationships with formerly
incarcerated workers.