Criminal Background Checks: Good in Theory, Problems in Practice

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One of the longest held axioms in social science is, “The best predictor of future behavior is past behavior.” Over the years many employers have increasingly relied upon criminal background checks as the principle strategy used to screen out potentially risky hires from the workforce. The problem is, as expressed by another axiom of behavioral science, namely, “People often make bad decisions early in life.” These bad decisions, which they later regret, usually are not permanent. People can recover, rehabilitate themselves, and turn their lives around.

In making hiring decisions, we find ourselves at the horns of a dilemma. Most people who are convicted of a crime, especially property offenses, will never offend again and not become a threat to society. The problem is that we do not have very good tools to predict who will be successfully rehabilitated and who will offend again. As such, most employers, on the advice of legal counsel and risk management, choose to err on the conservative side of this question. This means, if a person has been convicted in their past, we generally exclude these individuals as candidates for employment forever. The net effect of this policy is gross discrimination. This is especially true for those who have used drugs, stolen anything, and who are male minorities, particularly true for African-American males.

New EEOC Guidelines

After the evidence of hiring discrimination was allowed to pile up to levels that no longer could be ignored or tolerated, the Equal Employment Opportunity Commission (EEOC) finally took action in April of this past year. The EEOC issued enforcement guidance that is expected to yield significant practical and legal impact. The commission stated that “people cannot be denied employment solely on the basis of criminal histories.” However, they stopped short of totally banning the use of criminal background checks in the hiring process.

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Since this ruling in April, I have asked many in the loss prevention community what their companies were going to do in the future. A few have told me that they were going to continue to screen out former criminal offenders, knowingly taking the risk that potential discrimination lawsuits would result. However, the majority of firms have reexamined their entire hiring process, asking this critical question—”Is it necessary to exclude everyone who has a criminal history from potential employment?”

Many of you already know my position on this issue. You might even remember when I argued before a large convention audience of LP executives that dishonest employees could be successfully rehabilitated and might actually be good candidates for hiring. My logic is based upon the fact that most offenders do not reoffend. My position is further supported by the fact that those who have been caught and punished would probably be the easiest to deter, given the fact that they knew that their behavior would be more carefully watched than any other employees. In this presentation, I was mildly booed and fully expected tomatoes to fly in my direction at any moment. In hindsight, however, I still think that I am right. However, since my job was not in jeopardy, I fully recognized and appreciated the significance of my radical recommendation to this particular audience.

Well, here we are some ten years later and find that the EEOC is supporting my controversial position. Based upon this ruling, employers are expected to take the risk and hire ex-offenders, unless their prior offense is directly related to the performance of their future job. Of course, we do not have to put persons with previous embezzlement convictions in the cash office, nor drivers with a DUI behind the wheel of a delivery truck. However, when future job responsibilities are not related to their former offense, people should be given a chance to get a job, prove their honesty, and turn their lives around.

Wearing the “scarlet letter” of ex-offender is a difficult label to erase. However, it can be done. Pilots with alcohol problems are now permitted back in the cockpit in many airlines. Recovered pharmacists with former drug dependencies are now dispensing medicines in many drug stores. The list goes on. A review of today’s Washington infidelity scandals clearly indicates that even the most prestigious people can make mistakes. However, most recognize their mistakes, make amends, and go on to live productive lives when employed in occupations that recognize the fact that rehabilitation can and usually does work.

Will Retail Lead the Way?

As a criminologist, I would hope that the retail industry would embrace and implement these new EEOC guidelines to change their present hiring policies. Fighting expensive legal battles over this issue seems to me a waste of time and money.

The social science research literature supports the new EEOC hiring guidelines. Moreover, one could argue that the industry that hires the largest number of employees in our country should be the one to lead the rest of the nation in reducing the level of racial, ethnic, gender, sexual orientation, and other forms of unwarranted discrimination.

I know this is a controversial subject, but I firmly believe that the risks that we take in hiring ex-offenders are far smaller than our discriminatory stereotypes would lead us to believe. Who knows, perhaps it will be the retail industry that sets the national standard for reintegrating former offenders back into the mainstream of our society. In my opinion, this would be a noble and truly worthwhile achievement by the nation’s largest industry as led by its loss prevention professionals.

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