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Editorial: Getting to heart of flawed criminal justice system

A federal judge’s ruling last week that upheld the ubiquitous and evenhanded practice of criminal background checks before employment signals that some measure of common sense still has a place in the nation’s courts.

In a strongly worded opinion, U.S. District Judge Roger W. Titus dismissed the U.S. Equal Employment Opportunity Commission’s attempt to cast the use of pre-employment background checks as a discriminatory hiring practice, saying that the commission did not present reliable evidence of a disparate impact resulting from any specific practice.

“Merely pointing to ‘statistical disparities in the employer’s workforce’ is not sufficient; the plaintiff must provide statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group,” Titus wrote.

(Ironically, the EEOC itself, Titus notes, conducts criminal background investigations as a condition of employment for all employees and conducts credit background checks on approximately 90 percent of its positions.)

At issue in this case is Title VII of the Civil Rights Act, under which some hiring policies can be unlawful if they have a disparate impact on the basis of race, color, religion, gender or national origin. In its complaint, the EEOC noted that criminal background checks (in part because of a problematic criminal justice system) have such an impact on blacks seeking employment.

But the evidentiary standard in disparate impact claims is rightfully set very high, and the existence of broad societal problems, coupled with an admittedly imperfect (and in some ways biased) criminal justice system do not come close to meeting the bar needed to indicate an unlawful practice.

In his ruling, Titus found fault with the EEOC’s expert’s analysis of the data to prove disparate impact, but more importantly noted that it is not enough for the plaintiff to show that “in general” the collective results of a hiring process cause disparate impact. Statistical analysis must isolate and identify a discrete element in the hiring process that produces the discriminatory outcome.

“The story of the present action has been that of a theory in search of facts to support it,” Titus wrote. “… By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.”

The bottom line is that the EEOC lawsuit rightly notes some of the longstanding problems regarding racial disparity in the United States, but going after an employer, rather than the roots of the issues, clouds the matter and creates even more tension between conservative and liberal views on this topic.

If it can be productive in any way, the EEOC’s case could reinvigorate stagnant conversations about racial disparity in the criminal justice system (nationally, the imprisonment rate for blacks is 2,300 per 100,000 people, while for whites, it’s 412 per 100,000 people, according to The Sentencing Project; in Maryland, those numbers are 1,580 per 100,000 for blacks and 288 per 100,000 for whites).

The case could also spark serious discussion around better ways to reintegrate people with criminal pasts into the mainstream workforce. Numerous studies indicate that employment is a key component in reducing recidivism and there are plenty of anecdotal success stories where employers have found highly fruitful relationships with formerly incarcerated workers.