Is it discrimination to not hire someone because of their criminal record?


Author: Joshua Thompson

This story of a lawsuit filed in the Northern District of California has recently picked up some national attention.   The plaintiffs are alleging that First Transit is discriminating on the basis of race because they do both credit and criminal background checks before deciding whether to hire someone.  This, the plaintiffs argue, causes a "disparate impact" against African-Americans and Latinos, because those races have conviction rates greater than those of whites. 

Of course, there is nothing inherently discriminatory about credit and background checks. But disparate impact theory, as I have blogged about many times, does not require any showing of an intent to discriminate.  Instead, to make a prima facie case for disparate impact, plaintiffs need only show that some non-discriminatory criterion (i.e. objective test scores), when used to make a hiring decision, statistically burdens certain races more than others.  The burden then shifts to the defendants to prove that the criterion is either job-related or needed for business necessity.

Unfortunately, a prima facie case of disparate impact is not hard to show.  A statistical showing is all that is required.  So, if members of one race, can statistically demonstrate that its members are selected at a rate less than 80% of members of another race (because of that criterion), they have met their burden.  But this is a backwards way of looking at race-neutral job selection criteria.

To show the absurdity of this process think of the NBA, where approximately 85% of the players are black.  I played basketball in high school and Europe, but I never had anywhere near the talent necessary to play in the NBA.  Nevertheless, I could make out a prima facie case of disparate impact against whites by choosing some criterion that NBA teams use to evaluate whether to hire a player, and then demonstrating that that criterion falls primarily to the benefit of African-Americans.  It would then be the NBA's burden to demonstrate that they need to be able to use that criterion in making hiring decisions.

While the NBA would be able to meet this burden, they would still have to go through a legnthy discovery process, hire multiple lawyers and statiticians, and likely conduct an expensive trial before winning. I could then appeal that case, and the NBA would have to spend more time and money defending the appeal.  Furthermore, nothing would prevent a separate plaintiff from bringing a nearly identical case using some other objective criterion.  Since the statistical predicate is present, nearly anything could allegedly cause a disparate impact, whether they are acutally discriminatory or not.

The result of allowing these disparate impact cases to proceed is that employers are wary to use any objective criteria in job hiring decisions for fear of a disparate impact lawsuit.  Keen to the potential of a disparate impact lawsuit, employers, either explicitly of implicitly, will racially balance their workforce to avoid the crippling costs of such a lawsuit.  In Ricci v. DeStefano, Justice Scalia recognized "Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes."  Of course making hiring decisions based on race is exactly what the Equal Protection Clause forbids.  So, disparate impact places employers in a Catch-22: either use objective criteria and face a disparate impact lawsuit, or implicitly use race to racially balance their workforce in violation of the Equal Protection Clause.

And it is a Catch-22. Surely, some businesses may, through pure race-neutral happenstance, achieve a workforce that is in perfect "balance" with the population of a given community/state/nation.   But the odds of such result happening are not great.  It is much more likely that non-discriminatory actions may result in a work force that does not perfectly match the population.  It is ridiculous to find liability on the basis of non-discriminatory action that would naturally occur absent any discrimination.  Indeed, statistically speaking, it should raise a red flag that a company is racially balancing its workforce, if it were to come out that the workforce was always in perfect "balance."  

Despite all of this, disparate impact may have its place.  It was designed as a method to root out intentional discrimination i.e. employers that only use objective criteria as proxies for keeping out members of certain races. Justice Scalia noted, "It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination—to 'smoke out,' as it were, disparate treatment."  But by allowing cases to go forward without any showing of intentional discrimination, or without allowing a defense of "good faith," disparate impact has gone to far.  Now we have a case where an employer choosing not to hire someone on the basis of her criminal record, is alleged to be racial discrimination.

The sad part about this entire lawsuit, is that no one disputes that African-Americans are arrested and incarcerated at rates far greater than that of whites.  There are likely a myriad of causes for this travesty: education, parenting, drug war, etc.  Society should be concerned at alleviating these ills instead of punishing employers that have done nothing discriminatory whatsoever.