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FBI background checks in employment law under scrutiny

Civil rights laws that protect workers from discrimination in the workplace would arguably not provide any protection at all if a job applicant could never get in the door in the first place. Employment discrimination laws prohibit employers from discriminating in the job hiring process based upon a variety of reasons, including the race of an applicant.

Many employers are relying in greater numbers each year on criminal background checks in the hiring process. While an employer may conduct a check under some situations, commentators say that the increasing use of FBI criminal background checks in the employment process is troublesome. Outdated and incomplete information in FBI databases is resulting in racial discrimination and nation origin discrimination in the workplace.

A lawsuit has been filed recently against the Commerce Department regarding the disparate treatment that FBI criminal background checks can lead to—resulting in a disparate impact upon blacks and Hispanics in the job market. A national advocacy organization says that the FBI was used in about 17 million job applications last year with an estimated 600,000 reports containing inaccurate data.

Obviously, a great many employers are relying upon background information in the hiring process. However, the Equal Employment Opportunity Commission acknowledges that there is no federal law that expressly discusses the use of background checks, but cautions that a blanket policy against hiring a worker based upon an arrest and conviction record may ran afoul of the Civil Rights Act of 1964.

Some jobs, such as a day care for example, may have a real interest in keeping a convicted child predator from being hired to care for children. Some industries in the post 9/11 era are required to look into the backgrounds of potential workers under various laws.

However, advocacy groups are saying that because the FBI databases are often outdated and contain inadequate or inaccurate information in many ways that has resulted in many workers being wrongfully denied jobs.

A few lawmakers have taken heed and plan to seek new laws to help ensure that the databases, or information provided by the FBI in the employment law context is more accurate and up-to-date, according to the Washington Post.

Not all job denials are necessarily based upon discrimination. But workers in New York who feel that discrimination has occurred in the application process should consider speaking to a Nassau County employment discrimination lawyer for advice and potential assistance with the issue.

Source: The Washington Post, “Growing use of FBI screens raises concerns about accuracy, racial bias,” Ylan Q. Mui, July 29, 2013

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