While the President and many in Congress are demanding federal legislation that will require background checks prior to purchasing a weapon, another piece of our government is insisting that background checks could be unlawful.
Most, if not all companies perform criminal background checks before they hire. They do so because there has developed a body of law called “neglegent hiring”. It goes something like this…if an employer hires someone he knew or should have known was a danger, and that employee does something dangerous while on the job causing damage, then the employer can be held liable for the dangerous acts of the employee.
Follow the bouncing ball, here.
Though blacks make up only 13% of the U.S. population, more blacks were arrested nationwide for robbery, murder and manslaughter in 2009 than whites, according to the FBI. The imprisonment rate for black men “was nearly 7 times higher than White men and almost 3 times higher than Hispanic men,” notes the EEOC. These statistical disparities inspired the EEOC to rewrite the corporate hiring handbook…
In light of these statistics,
[l]ast April, the [EEOC] unveiled its “Enforcement Guidance on the Consideration of arrest and Conviction Records in Employment Decisions,” declaring that “criminal record exclusions have a disparate impact based on race and national origin.”
What is the impact of this rule, you ask?
If a background check discloses a criminal offense, the EEOC expects a company to do an intricate “individualized assessment” that will somehow prove that it has a “business necessity” not to hire the ex-offender (or that his offense disqualifies him for a specific job). Former EEOC General Counsel Donald Livingston, in testimony in December to the U.S. Commission on Civil Rights, warned that employers could be considered guilty of “race discrimination if they choose law abiding applicants over applicants with criminal convictions” unless they conduct a comprehensive analysis of the ex-offender’s recent life history.
As my brother would say, you can’t make this stuff up.