In response to the numerous cases of child abuse by church employees, most attorneys recommend that churches conduct criminal background checks on employees that work with children and youth. Similarly, churches began requesting credit reports on employees and applicants because of the high rate of reported theft and fears of embezzlement. Unable to resist a good idea, many churches have expanded these checks to include all job applicants. Now the extensive use of background checks may have created a new problem for churches: unlawful discrimination based on race, national origin, and color of skin.
Not too long ago, well-known secular employer paid $3.1 million in financial relief to settle a discrimination claim related to its use of background checks. It also agreed to change its policy regarding criminal background checks.
According to the Equal Employment Opportunity Commission (EEOC), more than 300 African American applicants were denied job opportunities with the company because something appeared in a criminal background check that caused the applicant to be denied a job. According to the EEOC, excluding applicants based on the results of a criminal background check can create a violation of Title VII, the law prohibiting employment discrimination based on race, color, religion, sex, and national origin. The commission says background check results may have a "disparate impact," meaning a disproportionate negative effect on protected classes of workers as compared to the general population, especially those of race and national origin.
Now the National Labor Relations Board has issued guidance on when, and how, an employer may lawfully use background checks and not create a disparate impact on protected classes of applicants.
How checks could lead to discrimination
In 1991, only 1.8 percent of the general population served time in prison. The U.S. Department of Labor projects that 6.6 percent of those born in 2001 will serve time in prison. This projection indicates that many more Americans are likely to have a criminal history than ever before.
In America, African American and Hispanic individuals (especially African American and Hispanic males) receive far more criminal convictions than Caucasian individuals. In 2008, America's general population had the following racial composition: 66 percent Caucasian; 14 percent Hispanic; 13 percent African American; and 7 percent other races. In contrast to the general population, the prison population in 2009 had the following racial composition: 39 percent African American; 39 percent Caucasian; 16 percent Hispanic; and 6 percent other.
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