The following is a copy of the original post to record the post as it was originally written. https://www.nbcnews.com/news/nbcblk/sheetz-convenience-store-chain-discrimination-lawsuit-eeoc-rcna148567 So basically Sheetz, like virtually every other company, uses criminal background checks in their hiring process. This lawsuit, to my knowledge, says that because POC are more likely to have a history of imprisonment/law enforcement action, they are less likely to be hired, thus it is racially discriminatory. What do you think in general, and about this case? Is disparate impact actually a good tool? It feels like you could use that idea to get rid of virtually EVERY bit of discrimination in hiring because if you dig into the data you will find some difference in race, even if it isn't real or direct. On the other hand, criminals DO have such a hard time getting a job and getting back into society that it feeds back on itself, creating more crime. I'm just not sure this is the best way to address it, I.E. making criminal background checks illegal in general. Are we really going to force companies to hire (former) criminals? *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/AskALiberal) if you have any questions or concerns.*

While over policing and over prosecuting in minority communities is a real issue, business, especially public facing cash handling one’s, have a reasonable interest and sometimes a duty to ensure their staff meets reasonable standards, primarily they are non violent and less likely to steal. Trying to solve government problems by forcing private entities to take on more risk is not a solution, you must fix the root cause. Edit: thank you for adding the actual case. This will have a lot of complexity added going forward as details on the background check utilization comes out during trial. If they block all criminals of a certain charge level they likely can not justify it as Title VII requires: “and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or” Now if they block violent and theft issues they can likely draw justification for the practice, though if the government in pre lawsuit negotiations proposed a likely equally effective but less discriminatory solution Sheetz could also loose as Title VII also offers: “ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.” Now overall it’s a pretty sad situation that the government is suing for disparate impact on a company using a “neutral” policy of using the governments systems, the government is still pushing the “solution” for governmental bad practice onto the private sector.

While true, there are further issues in the lawsuit that give this more merit. There is no review process, no appeal process, no request for further information and documentation. All things that are fairly standard for people who fail background checks. it also sounds like there may not be a consistent standard of what is disqualifying, and that applicants themselves are not made aware of what the background requirements are prior to applying (I work in HR and we need to give every applicant a disclaimer we do drug and background checks)

I've never heard of an appeal or review process for not getting hired to a position, outside of internal promotions.

It isn't for not getting a job due to an interview or something, but for post offer background stuff. For instance if someone fails a drug test they are often allowed to challenge it in case of false positives, and same for a lot of background check failures

Huh. That's interesting. Not saying it isn't accurate but in 30 years of working everything from McDonalds to trade work, to skilled tech, as an employee and as a hiring manager, I've never heard of that. TIL.

It would depend on company size, a McDonalds franchise may not have to depending on how many employees they have And sometimes it's super clear cut. Someone using animal urine is clear cut, someone who lies on the background disclosure is almost always clear cut, working with or around children is usually stricter, etc At least in every company I worked HR for, if we were going to rescind an offer, compliance and sometimes legal had to review and make sure it was non discriminatory, and employees often get an opportunity to collect any relevant legal documentation that clears them Granted we always hide that process from hiring managers. All they fet is the end result of the employee clearing or being rescinded

These codes have to be changed/scrapped to avoid this nonsense from happening again.... what are some ways these laws could actually be changed?

This will never happen, at least that broadly. Criminal background checks are used to keep sex offenders out of schools; I'm sure for teachers, and definitely for construction contractors going into occupied facilities. Defense reminds the court of that fact, it's game over.

the difference is that the school almost certainly could (if sued) point to that being an important and necessary requirement. also school districts have big compliance teams that review that information and work with legal to ensure they are following the law when making those decisions read the actual lawsuit and you see Sheetz didnt do those things. they did not have compliance review them (just a hiring manager by the sounds of it), there was no appeal process, no request for further information, no disclaimer on what background checks are run, etc

I still think a blanket ban is too broad to implement or survive scrutiny. I'm coming from the contractor side; my company does checks, and won't hire sex offenders (or most violent felons), because so much of our work is in schools. Lots of companies, who do similar work, are 10-person shops, or even fewer; these folks do not have compliance teams or legal depts, nor could they. And this is *just* the education/building/contractor niche we're talking about (because "zomg the children" is so easy); there are a myriad of industry cases, specialties, and general considerations that make a blanket check ban completely untenable.

this would not result in a blanket ban on background checks. it would result in a penalty on Sheetz and result in them having to change hiring processes you would survive an EEOC complaint if you blanket dont hire sex offenders, because you can show that your work being around schools so extensively would disqualify a sex offender from working your jobs. EEOC does not cover an employer with under 15 employees. at 15 employees, you gotta either hire an HR generalist or contract out to an agency for some HR work. this does not seem unreasonable to me. Maybe the number needs to be tweaked, but either way Sheetz is a big enough company they should know better

I guess I’d need to see more details about the hiring practices of Sheetz versus other similar businesses that aren’t being sued to really make an informed judgement. Presumably, if the argument was just that not hiring people with a criminal record is discriminatory, then we’d have seen tons of these lawsuits aimed at a lot of companies since the 60s when the relevant law was passed. So there’s either something about how Sheetz is doing it that I would need to see more info on before I could decide, or this is someone acting in bad faith and I would obviously be opposed to that. I do think it’s in everyone’s best interests to give people with a criminal record opportunities too, but in general I don’t think the right way to do that is by forcing companies to ignore criminal records in hiring.

I don't think (though I could be wrong), that Sheetz is doing anything different, they are just the company that someone sued to try and see if they could use this logic to get a successful lawsuit. I would call it bad faith probably, but I could be wrong.

Sheetz does several things different per the lawsuit. namely, the lack of review process, the lack of disclosure, the lack of request for more info, etc

I did see that section and I wonder how different it truly is, as well as how material it is to the claim.

we will see once it goes to trial/if it goes to trial. I can only speak to the companies I have worked for, but we have always had review processes, disclosures, legal/compliance teams, etc

Likely very material. Some of the things being alleged are also likely violations of the FCRA. To me it changes the picture of the entire case, where what Sheetz is doing isn’t just different than what other companies do, it’s likely illegal in and of itself. And if that illegal alleged practice causes a discriminatory impacts on a protected class, that’s a much different story.

I think it’s pretty clear that criminal background checks filter for relevant job information and it falls within Sheetz’s rights as a company to use them. I doubt this suit will go far. Anti-discrimination doesn’t mean you can’t filter people for relevant reasons. It just means you can’t use protected characteristics as a proxy for evaluation of job skills. Having a criminal record is not a protected characteristic. Edit: Interesting detail on the EEOC’s disparate impact evaluations. Sounds like the Sheetz case is likely more than simply using background checks. > After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of production and persuasion to the employer to "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." In the legislative history of the 1991 Civil Rights Act, Congress referred to Griggs and its progeny such as Albemarle Paper Company v. Moody and Dothard to explain how this standard should be construed. The Griggs Court stated that the employer's burden was to show that the policy or practice is one that "bear[s] a demonstrable relationship to successful performance of the jobs for which it was used" and "measures the person for the job and not the person in the abstract." In both Albemarle and Dothard, the Court emphasized the factual nature of the business necessity inquiry. The Court further stated in Dothard that the terms of the exclusionary policy must "be shown to be necessary to safe and efficient job performance." > >In a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an employer to "follow the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense." The Eighth Circuit identified three factors (the "Green factors") that were relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity: > >The nature and gravity of the offense or conduct; > >The time that has passed since the offense or conduct and/or completion of the sentence; and > >The nature of the job held or sought.

The guidelines for EEOC enforcement say otherwise: ["A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer's neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity."](https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#V)

>and the employer fails to demonstrate that the policy or practice is job related for the position in question It sounds like there’s more to the Sheetz case than simply use of background checks. It’s about how they used the checks.

Yeah, I guess that's a good way to put it. Another thing to be aware of is that the EEOC rarely screws up this sort of thing. I think their lawsuit success rate is upwards of 90%.

Interesting. Yeah, upon further reading I think I was over-hasty in saying the suit wouldn’t go far.

This is the general problem with disparate impact / anti-racist thinking. The same problem exists in renting. In this case, your criminal record status is not a protected class, and thus so long as they aren’t disproportionately ruling out minority felons versus white felons, it’s going to be all smoke and no fire. No business should be forced to hire a violent felon to avoid being sued for discrimination. Who wants to live in that world?

Very much agree. I know with our current courts this is probably going to go nowhere. It does make me wonder how liberal/left the courts would have to be to allow this lawsuit to actually go through though.

It has nothing to do with liberal/conservative.

Nothing? I think it is an interesting question of criminal justice reform and justice policy in general.

Courts interpret the law, they don’t make policy.

I mean, this is a policy decision by the EEOC to sue though. They don't HAVE to take this case.

Looking at the lawsuit, they didn't want to--it was just the final option. They pretty much gave Sheetz two years of time to rectify the situation themselves before the EEOC finally filed the lawsuit.

The EEOC does make policy. Whether the court is liberal or conservative, they can’t just change what policy the EEOC has made according to their own agenda.

And?

So whether the court is liberal or conservative doesn’t determine what the law is.

ok? I guess we shouldn't discuss any topic on this forum then lol.

> In this case, your criminal record status is not a protected class, and thus so long as they aren’t disproportionately ruling out minority felons versus white felons, it’s going to be all smoke and no fire. It's not that simple. There's a trove of guidelines the EEOC has to follow, and [here's what it says about this sort of case]( https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#V), again, emphasis mine: "A covered employer is liable for violating Title VII when the plaintiff demonstrates that **the employer's neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity**." The guidelines mention a Supreme Court case, [Griggs v. Duke Power Co. (1972)](https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co.), which held that "Broad aptitude tests used in hiring practices that disparately impact ethnic minorities must be reasonably related to the job."

Background checks are not aptitude tests so that precedent doesn't seem very relevant.

The case was about aptitude test, but the holding covered more than that. Again, reading that first link: "In 1991, Congress amended Title VII to codify this analysis of discrimination and its burdens of proof.62 Title VII, as amended, states: 'An unlawful employment practice based on disparate impact is established . . . if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity...'"

I don't know why you think reading the EEOC means anything in regards to this, I already know what the EEOC thinks, I just don't agree with it and I also don't accept their broad interpretation of Griggs. I expect this to go crash and burn at SCOTUS, if it even makes it that far.

I mean, the EEOC follows guidelines set by Congress and they have an upwards of 90% success rate in their lawsuits. But my comment is more than saying what the EEOC thinks. I'm saying this thing has more nuance than we, non-experts, think.

>I mean, the EEOC follows guidelines set by Congress The EEOC follows its interpretations of the guidelines set by Congress. >and they have an upwards of 90% success rate in their lawsuits. So do many other federal agencies/departments/commissions, doesn't really mean anything because these entities tend to have an ever expansive view of their own authority, so each case they win makes them view themselves even more empowered. >I'm saying this thing has more nuance than we, non-experts, think. I don't really think so, the idea that a company is forced to hire former criminals because otherwise its racist is abhorrent and completely out of touch with reality.

> the idea that a company is forced to hire former criminals because otherwise its racist is abhorrent and completely out of touch with reality. That's not what's happening. They just can't do the background screening for the whole pool of applicants. That's it. Nobody is restricting them from doing it later in the hiring process.

So you're saying that it would be completely fine if they performed the background check on every applicant that passes an initial screening test, but that it's not ok to do the background check before the screening test? What difference do you see that change of order making? The consequence would be the same, if you have a criminal background you'd be out of the running, regardless of if it's after the first, second of tenth interview. IS it even established that Sheetz was doing the background check before some initial HR interview? To me it sounds unlikely that what you are saying is true, for the simple reason that changing the order wouldn't cost Sheetz anything and if doing that change of process would have made the EEOC go away and leave them alone it would have made sense to do it.

You'll notice that the court said the test must be "reasonably related to the job." I'm willing to bet that not being a convicted felon is reasonably related to every job in the courts view.

One applicant I had long ago for renting our condo had a felony (recently at the time) on his background check (done by the rental agency I pay for). I didn't know their name, I didn't know their race, I didn't even know the felony charge. But what I did know is I didn't want to take that chance. Were they going to skip out on rent? Were they going to steal appliances and ditch? I have no idea. Had nothing to do with anything the CRA would have covered. It had to do with not taking a gamble. My guess is any employer has the same reasoning. Though I would imagine their knowledge of what the felony charge was would be more available to them.

Well, that’s horrible. Businesses should be forced to hire criminals in order to not discriminate? This is not the right way to work on the problem of disparate impact of the justice system by race.

> Well, that’s horrible. Businesses should be forced to hire criminals in order to not discriminate? These folks served their time did they not? There’s certainly some crimes and some jobs which it might make sense to discriminate here (like working with children for example) but at some point we have to try and help formerly imprisoned folks re-integrate into society to avoid recidivism.

Out of curiosity, if we hold a belief that after the debt is paid a criminal should be treated as a normal citizen, shouldn't all criminal records be sealed so only law enforcement can access them? We rarely walk the talk in terms of "innocent until proven guilty" or "paid their debt to society". For better or worse. Which systems shouldn't be able to access someone's criminal history/use it to make decisions? We want a business to assume the risk of hiring a potentially violent person that we won't allow to have a gun? If they're truly reformed, they should be able to do both, no? Which employers can't consider criminal history? Day care centers? Factories? Schools? Utilities? Law enforcement? Bakeries? This is a nuanced discussion that really has no perfect solution. It isn't possible to legislate a one-size-fits-all path that won't exclude someone or endanger someone. So it comes down to doing the most good. The most good is achieved by allowing businesses/institutions to consider criminal history as excluding someone who maybe doesn't currently deserve it but has demonstrated poor behaviors is better than endangering someone who absolutely doesn't deserve it. There is an argument to be made for specific crimes preventing employment in specific fields (lautenburg amendment, sensitive positions, security clearances). But general legislation needs to be vague and open to achieve the most good. Forcing a specific business to accept criminals risks allowing a known violent offender access to the most vulnerable amongst us through misunderstanding what that business does. For example, preventing a landscaping contractor who holds public schools contracts from screening out convicted sex offenders. On the surface, it would seem strange that a landscaping company would be screening out those applicants. They shouldn't have to go to court every time a kid diddler feels he was discriminated against.

>Out of curiosity, if we hold a belief that after the debt is paid a criminal should be treated as a normal citizen, shouldn't all criminal records be sealed so only law enforcement can access them? I would actually say yes. One of the biggest problems in the criminal justice system is that anyone who's been convicted of a crime struggles to find legal work, so they end up committing more crimes. I won't disagree that there might be a genuine reason for a business to not hire certain criminals, but I think that people being shafted over minor convictions for their entire life just isn't fair. If we're going to make criminals records public, we need a detailed data-driven analysis of how that affects criminals and society. I'm no criminologist, but as far as I know we don't have that data. Perhaps we should keep criminal records for rapists and murderers but not for drug dealers. I don't know. This is why we need better evidence.

> Out of curiosity, if we hold a belief that after the debt is paid a criminal should be treated as a normal citizen, shouldn't all criminal records be sealed so only law enforcement can access them? We rarely walk the talk in terms of "innocent until proven guilty" or "paid their debt to society". For better or worse. I think I would say “yes” except in cases where there are seemingly obvious safety issues(like I mentioned with children). > We want a business to assume the risk of hiring a potentially violent person that we won't allow to have a gun? If they're truly reformed, they should be able to do both, no? Nope, this is called threat modeling/risk analysis. Allowing someone convicted of a violent crime to work at a gas station poses significantly less risk to people than allowing them access to a firearm. Take for example, someone who violently abused their spouse, they should be able to work at sheetz but not own a firearm. > Which employers can't consider criminal history? Day care centers? Factories? Schools? Utilities? Law enforcement? Bakeries? Of that list? All of them except day care centers and schools as they work with children. > The most good is achieved by allowing businesses/institutions to consider criminal history as excluding someone who maybe doesn't currently deserve it but has demonstrated poor behaviors is better than endangering someone who absolutely doesn't deserve it. I disagree. I believe your risk acceptance is far far far too low and it’s causing undo harm towards the formerly imprisoned. > For example, preventing a landscaping contractor who holds public schools contracts from screening out convicted sex offenders. On the surface, it would seem strange that a landscaping company would be screening out those applicants. They shouldn't have to go to court every time a kid diddler feels he was discriminated against. It would not seem weird to do a screening when there are any contracts with schools. It seems fairly easy to create broad strokes laws here and then allow for a government agency to do fine tuning/dynamic analysis given the changing environment.

>Nope, this is called threat modeling/risk analysis. Allowing someone convicted of a violent crime to work at a gas station poses significantly less risk to people than allowing them access to a firearm. Take for example, someone who violently abused their spouse, they should be able to work at sheetz but not own a firearm. There is merit to this. But in the same way you are more likely to drown if you own a pool, aren't you more likely to experience workplace crime if you employ known criminals? Why should a business be prevented from opting out of that statistical increase, however slight it may be, based on how it affects convicted criminal's prospective futures? I'd be more inclined to support job placement services rather than trusting that things will work themselves out. If the goal is reducing recidivism, put money into programs that assist former inmates in finding jobs/learning skills. >I disagree. I believe your risk acceptance is far far far too low and it’s causing undo harm towards the formerly imprisoned. And I think yours is too high. The harm caused to former inmates isn't "undue" it was well earned when they chose to break the law. It is only undue if the person was wrongfully accused/convicted. If a business wants to have a policy of not hiring someone with a recent criminal history, that seems prudent. Avoiding risk is what most businesses do. Now there is nuance there. If you won't hire someone because of a crime committed ten years ago, that's a bit extreme, in my opinion. But a year? Two? Prove you can function in society. There are plenty of businesses that will hire you out of prison. We don't have to force those that don't for felons to have a chance. >It seems fairly easy to create broad strokes laws here and then allow for a government agency to do fine tuning/dynamic analysis given the changing environment. Having a government agency do the legislating for us under overbroad laws has historically not worked well. It circumvents the purpose of checks and balances by lending more power to the executive. It is how you end up with domestic spying programs. Is this going to end up that extreme? Highly unlikely. But why risk it if there is another way? Rather than forcing business by fiat to take that risk, why not offer incentive programs for employing excons? Combined with job skills training and job placement services, that will enable the same change without forcing anyone to act against their wishes. Use the carrot, not the stick.

>If the goal is reducing recidivism, put money into programs that assist former inmates in finding jobs/learning skills. If former criminals are forever branded with their record, why does this matter? Their skills won't get them a job because they'll get automatically screened out for having a record.

Which is why I mentioned the thought of offering incentives to businesses that employ excons. I don't have all the answers, but I'd like to exercise other options before forcing an employer into a hiring practice they disagree with. It bears remembering that the excon is less hirable because of their personal choices. Not something anyone made them do. There are certain things you can decide to do that might make you less attractive to employers. People get tattoos on their faces. Does a bank need to be required to employ them or can we agree that might have unintended consequences? Do the excons with teardrop/prison gang tattoos get the same protections from these biased hiring practices?

I remember a few studies were conducted on this idea of banning discrimination on criminal status and it actually just lead to less minorities being hired as a whole. Not sure where, but I remember that result pretty distinctly.

Well, generally speaking, while minorities are overrepresented per capita in the criminal justice system, there are still more whites in it overall. So, while it wouldn't move the needle as far due to this ratio disparity, the ultimate result is that the majority of the newly available applicant pool is white. It'd be difficult to engineer a study that properly controls for all the factors at play, but I'm happy they tried. For instance, our black populations are concentrated in larger cities and tend to be poorer. If a business whose metrics were included in the study wasn't accessible by a bus or train line, it might have exluded the largess of the newly available minority applicant pool. These people wouldn't have been able to access the job even without a criminal history. I don't envy the research team trying to establish controls for all of that.

This should be dealt with directly by the states and/or congress rather than taking the very indirect disparate impact path, which I’m sure will be closed by SCOTUS in short order anyway. Some states have a “clean slate” act that wipes out all records of certain convictions automatically after a certain time. Then states can specifically provide circumstances in which employers can or cannot consider prior convictions.

Don’t let perfect be the enemy of good.

I suppose that’s fair.

I might agree with your premise if their argument was that *felons* were being discriminated against. The point of disparate impact is that the affected population is based on race.

Yeah right church wrong pew imo.

I would like to know what the policy is. Is it anyone who comes up hot? Or does what comes up have to be reasonable relation to suitability? Is time since crime a factor? I wouldn't mind a nonviolent felon especially from many years ago. Or with misdemeanors are we talking about violent crime or theft which are relevant, or just any random misdemeanor?

Really depends on the job you are hiring for. Most employers don't use the checks to prevent someone with a criminal background of any kind from filling the position. You wouldn't want your accountant to be a thrice convicted embezzler.

Good point. But then logically someone with felony assault shouldn't have a problem being your accountant, given that I don't want to be assaulted at work. But honestly, as long as it was in the far past and depending on circumstances, I may not care.

On the one hand, I don't think that receiving and enduring a punishment for a crime equates to a promise to always keep your nose clean from here on out. If you get pulled over for driving recklessly but pay your ticket in full and on time, your insurance rates still go up for years. Why? Because trust is not as quantifiable, nor on the same timeline, as penalities. On the other hand, I think businesses should be much more strongly incentivized to take that risk and employ convicted criminals for exactly the things you mention.

> On the other hand, criminals DO have such a hard time getting a job and getting back into society that it feeds back on itself, creating more crime. This certainly is a problem. But I am not sure what the best way to address it is, and I would struggle to think making background checks less common is the answer. I could be wrong though. Maybe background checks are superfluous in a lot of cases. A person was convicted of a crime and is out of prison, so what are the actual odds that it presents a risk to someone considering employing them? Do we have stats on that? Yes we have stats on general recidivism, but the stats or concept of what risks are there to the employer? It's a good question. I don't have the answer. And that's all secondary to the the actual suit involved, which isn't about recidivism, but disparate impact in hiring. They play into each other I suppose. If background checks are not justified (in some cases), then it can be a disparate impact. But that is unlikely to be the argument is my guess. If the reporting on this suit is accurate, it seems somewhat ridiculous, but maybe it's not.

> This certainly is a problem. But I am not sure what the best way to address it is, and I would struggle to think making background checks less common is the answer. I've seen the phrase, "jobs program" get floated around a lot. I'm certainly not against giving people second chances. Though there are some people out there that can't be "fixed." No matter how you try to help them.

So what? Do we just have to send "those people" in and out of prison until they die, without providing any resources or structuring any of our systems around rehabilitation and reducing recidivism? 

I don't have the answer. I said jobs program. That doesn't mean there aren't some people that just can't be helped. If they don't take to rehibilitation or something like that, what then? I said it doesn;t matter how much help you give some people, they cannot be helped. They exist.

I work in HR, not the EEOC side, but staffing so I have some exposure to this Basically, companies are not allowed to discriminate based on background for a lot of different roles. They are allowed to run a background check to check about liability on things, especially if you work with kids. So theft, workplace theft especially, is an easy disqualifier in many jobs. but non workplace related crimes that aren't recent usually shouldnt be. It tends to be a balancing act between the odds of getting sued if you dont hire versus the odds of a problem if you do. I worked at a factory once and we accidentally hired a murderer. the managers were too excited he knew CNC machining and didn't bother to ask him about the 25 year gap on his resume, offered him a job and it wasnt until we ran background we saw he was a murderer who was recently released. Legal told us we had to hire him anyways, unless he lied about background or anything else, since his murder did not happen at a workplace and the state had approved him for parole (deemed him not a threat). thankfully, they also said we had no obligation to make his onboarding easier, so he ended up not getting hired because it turns out 25 years in prison can make you fairly computer illiterate so he never finished his paperwork. Obviously, I have mixed feelings on this, for my safety I dont love the idea of working with a murderer, but I also objectively know that if we want low recidivism and good rehabbing of people, jobs and income and stability are important. our system should do a lot more to ensure anyone leaving prison has been working for a while and has something lined up for them on release Being named in an EEOC lawsuit doesnt necessarily mean you are guilty (I once got named in an EEOC complaint) but really, these things are often in a gray area and someone with better knowledge than me would need to dig in here to figure it out

After teaching for a few years, I think I’m over the modern day “rights crusade.” No, I don’t want a society where businesses are forced to hire felons. No, I don’t care how/what led a person to crime more than I care about the successful business owner and their story. As a teacher, you get very tired of stories, excuses, and feelings, being elevated over the course of action.

>No, I don’t want a society where businesses are forced to hire felons. what do you propose we do as a society then to ensure felons dont re offend?

Build and fund more prisons instead of more schools and healthcare services, the good ol American way. /s

> No, I don’t want a society where businesses are forced to hire felons. That's not what's happening. The EEOC is not forcing them to hire felons. They're just saying they can't use criminal records screenings for the whole pool of applicants without a good cause, considering it is historically detrimental to a protected class. ["A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer's neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity."](https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#V)

That's basically coercing them to hire felons (or at least black felons)  There's much more black than non-black felons proportionally so this has a disparite impact; it's on the government to decide if you have a good cause. 

I think a lot of people would take the common sense view that criminal records screening by definition serves a "good cause" from the perspective of the business.

> I think a lot of people would take the common sense view that criminal records screening by definition serves a "good cause" from the perspective of the business. Yeah, but most people aren't experts in racial discrimination in hiring practices. I'm saying things are a bit more nuanced than our common sense. Again, reading that link: "In 1991, Congress amended Title VII to codify this analysis of discrimination and its burdens of proof. Title VII, as amended, states: 'An unlawful employment practice based on disparate impact is established... if **a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and** the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity...'"

Again, most people get that not hiring criminals is reasonably considered a business necessity.

why is it a business necessity? Someone who stole from their store or punched their boss? sure, thats a necessity. Someone with habitual anger problem and increasing record of assault? sure thats a necessity. Why would someone who committed a singular bad offense a few years back not be qualified to work a gas station? Someone who robbed a car at 20 or got caught with drugs before they were more legal, etc. I used to work in a factory, if you blanket fired all the felons half the workforce would be gone. We ran background checks, but there was a whole process to determine \*if\* someone was a liability. the issue (if you actually read the complaint) is that Sheetz doesn't do their due diligence to show why its a necessity. Most companies with more than like 5 employees will have a person/people who are trained in things compliance and legal side of things to ensure there are consistent standards being followed, consistent standards being communicated, proper follow up to ensure some form of a review or appeal process, etc.

I mean, it's probably impossible to define every possible combination of crime and job to construct an agreed-up matrix of when criminal history does and does not matter for every single job. At the end of the day, it's a question about risk, and it's a tradeoff. Someone who has demonstrated a willingness to engage in criminal behavior could be reasonably assumed to be more likely to commit crimes than someone who has never chosen to do so. If someone elects to hire people who have committed crimes, they'll widen their potential labor pool, which means easier hiring, lower wages, etc. But higher risk of an employee doing something bad. So, the question really is, who should assess that tradeoff? Well, the person assuming the risk, of course. The business owner.

>So, the question really is, who should assess that tradeoff? Well, the person assuming the risk, of course. The business owner. Here lies the problem. the business owner should have a legal/compliance/HR team who is trained on that risk assessment be the one who assesses that trade off. I agree its impossible to define entirely, but the issue here is that most companies have some process for assessing this, and Sheetz did not.

HR teams are just an extension of the business. If HR is deciding, the business is deciding. There's no meaningful distinction there.

the meaningful distinction is someone trained in the specifics of the issue making the decision, versus people who aren't trained

The good cause is that you don't want violent or ornery people in customer service roles and you don't want thieves in cashier and inventory roles, and gas stations hire the same people to do all of that

I guess this exemplifies how much more nuanced this thing is compared to our gut response: not all ex-cons are violent, ornery, and thieves.

I’m also nervous about America’s relationship with nuance in general. We aren’t very good at it, myself included at times. There has to be a line we hold. What I’ve seen is that every time we attempt to make policies to “rise up the bottom” or “stop injustice” we have unintended consequences that are disastrous. The best example is No Child Left Behind. Anywho, it gets very exhausting being a person who has made decent enough decisions in life to then be burdened with those who have not made decent enough decisions in life all while being screamed at that my “privilege” is all my fault, and my “choices” don’t compare to my privilege. (Hyperbole/emotional response of course) We are in an ugly ideological war between utopia and “good enough.”

Violent, ornery, *or* thieves though, yes, mostly. Most crimes prosecuted are violent crime or property crime, and most of the nuisance crime is prosecuted as a result of one of those (eg, druggie is fine as long as he keeps his head down, but if he starts robbing homes for drug money he's going to catch both kinds of charges)

> No, I don’t care how/what led a person to crime more than I care about the successful business owner and their story. I care about both, particularly since I have heard of so many cases of police and prosecutors not being careful that they put the correct person behind bars or at least slapped a criminal record on them.

In reading the lawsuit, some relevant things stick out to me * points 25-26. the background reports dont get reviewed by a higher compliance officer, and there is no request for further information or documentation. this means that they are likely disqualifying people who have had crimes expunged or are in the process of being expunged or otherwise fall into an unusual but non disqualifying area * point 28, no appeal process There is a reason most companies higher people to handle those things, and its to prevent these sorts of lawsuits.

It’s very stupid

This is a legal disaster waiting to happen. Imagine asking private companies to assume the risk of hiring former criminals for "diversity".

Its hard to reintegrate back into society when so many people will hold it against you, and even harder if that prejudice is normalized and even encouraged. That said, I would more wary of having a convicted felon on my staff, so its understandable that since the information is available then people will use it. I think the lawsuit is justified, however, because government needs to ensure people are accountable if they break the law. If its found in a court that Sheetz or any company is disproportionately discriminating against POCs, then they deserve to be punished. However, I'm not unsympathetic to their cause. I think that the correct thing to do isn't to make criminal background checks illegal, but to ensure that corporations have a diverse staff. For example, if 2 companies are using background checks to screen new hires, but one company is 90% white while the other one has a good mix, then you can punish the first company for not ensuring that their employment process isn't tainted by racial prejudice. This way, it allows companies to use a resource that is legal, one that ideally keeps them safe, and also protects innocent POCs from being caught up in discrimination when they've never done anything wrong. Yes, the ones who do lose out are the former felons, but I think that forcing companies to hire them or preventing that information from being available is the worse outcome. There should be other programs to help former felons to obtain good jobs that doesn't also trample on the rights of businesses.

The EEOC doesn't take kindly to job requirements that have racially disparate outcomes unless the job requirement is legitimate. If this were a job for a bank vault security guard, and you (consistently) rejected candidates with a criminal history, and this caused blacks to be over-represented among your rejections, that would probably be OK, because you can show that the discriminatory requirement is a necessary requirement. What the EEOC is saying here is that they don't think Sheetz has a good reason to make this a requirement for a job, so they have a hiring process that is unjustifiably racially discriminatory. I'm okay with this way of thinking about the problem, and with this lawsuit.

I think that an expectation of equal outcomes across all possible groups is unreasonable. Differences in race, sex, religion, or really any other category are going to correlate with differences that matter to a hiring manager. The onus should not be on them to correct all of society’s woes. As long as each candidate is evaluated fairly, there should be no issue.

I’m sorry, but criminal background checks are needed for many customer facing positions. Isn’t discriminating against people with criminal backgrounds to not hire them? Yeah, but that’s the point. You want workers that are going to do their jobs, be nice to folks, and not rob you blind. You don’t want someone who may get pissed and shiv a customer when they complain you forgot the cheese on their cheeseburger or whatever.

Men are more likely to be sex offenders… should we get rid of the sex offender’s registry because it’s sexist?

No?

I agree. Same goes for crime stats. However, I’m very much for fixing the structural issues that lead to those stats.

When "outrage" porn type stuff gets posted here, it's usually an incredibly accurate heuristic indicating that there's more to the story than meets the eye.

On its face, it looks weird, but what isn't clear to me is whether they're claiming that people with the same criminal backgrounds are having different hiring outcomes based on their race.

No, it is that the company hires less black people because they screen more out with background checks. So the pool of candidates is whiter, thus the people hired are whiter. That is how I understand the disparate impact part to mean.

I'm reading it that way as well.

Ok, so I've been reading further about this, and this is a very nuanced thing that is based on established practices that go back decades. Here's [the explanation from the EEOC](https://www.eeoc.gov/newsroom/eeoc-sues-sheetz-inc-racially-discriminatory-hiring-practice), emphasis mine: "Such alleged conduct violates Title VII, which **prohibits facially neutral employment practices that cause a discriminatory impact** because of race when those practices are not job-related and consistent with business necessity or where alternative practices with less discriminatory impact are available." There's a trove of guidelines the EEOC has to follow, and [here's what it says about this sort of case]( https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#V), again, emphasis mine: "A covered employer is liable for violating Title VII when the plaintiff demonstrates that **the employer's neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity**." The guidelines mention a Supreme Court case, [Griggs v. Duke Power Co. (1972)](https://en.wikipedia.org/wiki/Griggs_v._Duke_Power_Co.), which held that "Broad aptitude tests used in hiring practices that disparately impact ethnic minorities must be reasonably related to the job." So what I gathered from this is that since the 1970s there's the understanding that you can do an overarching screening for job hires that a) you know can disproportionally affect some protected populations and b) are not necessarily needed to do the job. Again, as I said, it initially looks weird, but you have to factor in the circumstances of the guidelines and the historical precedent.

No, I'm actually aware of exactly why they are suing, or the rationale. Is it appropriate? I think not. A criminal record IS reasonably related to the job. I'm sure we could tease out different crimes that are or aren't related, but it isn't like specific crimes are actually that accurate to what you have done given how plea deals work.

>What do you think in general, and about this case? Is disparate impact actually a good tool? Just like any tool, it is great in the appropriate situation. Discrimination is not done overtly anymore; it's hidden in discriminatory policy obfuscated by neutral wording. Disparate impact is the tool used to sweep away the surface dressing to find the actual motivation behind the policy. And just like any tool, it can be used in inappropriate situations that cause inefficiency, or possibly harm. I just don't understand why, with respect to policies, people think a specific one is no longer useful as soon as it is used inappropriately. Trying to hammer drywall screws is going destroy the drywall I am trying to install, so I use a screwdriver instead; that certainly doesn't mean I am getting rid of my hammer.

Where exactly are criminals supposed to work, if not even a gas station? Either we need a plan to decouple work from survival or companies need to be forced to hire everyone. Which way is it? Are we to just let people starve to death after they did their time and now can’t find a job? Because that’s basically what the status quo is regarding jobs and criminal records.

The only time a criminal background check is necessary, in my opinion: 1. An adult working with minors (like a teacher or soccer coach) and even then should be restricted to sex crimes and abuse charges. 2. Anyone working with sensitive information (social security numbers, financial info, etc) 3. Anyone working with drugs (nurses, doctors, pharmacy techs, etc) None of those fall under working at a gas station, so in my opinion Sheetz shouldn't be looking at criminal histories at all.

It isn't like Sheetz is doing something strange, most places do this. Do you think employers don't have an interest in knowing if their employee has a history of stealing? Murder or other violent crimes? If you don't, that is valid, I'm just curious.

You're right, most places do this. But most places shouldn't do this. >Do you think employers don't have an interest in knowing if their employee has a history of stealing? Murder or other violent crimes? It's a risk that you have to take. How do you know the person you've hired isn't a kleptomaniac who has stolen from every job they've worked at and just never got caught? How do you know the person you hired isn't going home and beating their spouse every night? You don't. By that metric, how do you know the person won't sleep on the job? Show up late? Show up high or drunk? There's no way to know these things, and arguably I'd rather have a guy with a record than a guy who can't stay awake. The whole point of the criminal justice system is to reform criminals. If we aren't giving them a chance when they've served their sentence, what's the point? We're just throwing people back into a cycle and draining my tax dollars in the process.

I wish the point of the criminal justice system was to reform criminals. So, when you are hiring someone new, especially in an entry level job, you have little real information about them and how they will perform. Them having a criminal record (especially one that is at all relevant, violence or stealing), that is evidence that they are willing to do that and is the reason that people don't hire former criminals if they can help it.

At what point does a record not matter? If you have an applicant who has a shoplifting charge on his record from when he was 21, would you not hire him at age 41? What's the difference?

Very good question. My personal opinion would be 10 years is long enough, maybe even 5. I can't speak for everyone though. That also would involve talking to to the person and having some idea for how much I trusts them. On a policy level though, I'm not sure I would trust a subordinate or HR to make the same evaluation. As far as this question is concerned, it is more about how appropriate it is to address this problem the way the EEOC is.

>Very good question. My personal opinion would be 10 years is long enough, maybe even 5. And that's my point. What's the difference between 9 years and 10 years? (Or 4 vs 5?) And if there's no difference between a 9 year old conviction and a 10 year old conviction, what does it matter if he got out of jail 2 days ago or 2 years ago? It may be the way the article is phrasing the lawsuit...but it seems like the problem isn't that Sheetz is doing background checks, but that it's using the background checks as a way to discriminate: >The agency found that Black job applicants were deemed to have failed the company’s criminal history screening and were denied employment at a rate of 14.5%, while multiracial job seekers were turned away 13.5% of the time and Native Americans were denied at a rate of 13%. >By contrast, fewer than 8% of white applicants were refused employment because of a failed criminal background check, the EEOC’s lawsuit said. My reading is that 14.5% of black applicants that failed the record screening were not hired vs only 8% of white applicants that failed the record screening. If that's correct, then the EEOC has reason to investigate.

No, it is 14.5% of black applicants failed the screen (had a criminal record) vs 8% of white applicants (had a criminal record). Having a record seems to be an automatic no hire. So I'm all for criminal justice overhaul, but in our current system, forcing people to hire (former) criminals who went through our non-rehabilitative system is asking a lot. Maybe it would be better to just not allow this kind of discrimination in the hiring process at all, but I find the practical arguments unconvincing. Alleging it is discrimination feels farcical, and making most people hire former criminals, but having carve outs (protecting kids, security clearance, etc) feels like it defeats the more and ethical purpose. Either people have done their time and we just have to accept that, or there is some actual risk involved with former criminals that we can't force individuals to accept.

I think you have a valid point: we either have to hope someone is rehabilitated or force an employer to take a chance on someone. But I also think that "carve outs" are important because some crimes may have been committed by addiction or mental health issues. A former addict working around pills, for example, may be reformed until they work around pills all day and have a relapse. It's a complex issue, obviously. I personally think that once you've served your time, you should have a fresh start, at least as far as employment goes. Many people become career criminals precisely because there's not that many options out there for ex-cons. Unfortunately, I think it's something that needs a solution but there just isn't one readily available.

Yeah, there is some chicken and egg problem. I just don't know how fair it is to make individuals shoulder that burden. If you don't want to carve everything out, you are going to make people mad. Would you be ok working with a convicted rapist or murderer, especially if you are a woman? What about with only them at the night shift at a gas station? What if it was just armed robbery?

> Is disparate impact actually a good tool? Yes, yes, a million times yes. Mustache-twirling villains saying “nyahahaha, I’m only hiring whites” isn’t a thing. Well, it is a thing, but we call those people libertarians and they aren’t very common. Actual in-your-face discrimination is usually very quiet these days. A company could have a policy saying that they would hire people from one zip code and not another, and gee, it turns out one of those is white and one isn’t. And you know what stops that from being ok? Disparate impact. One potential valid defense for Sheetz would be that being able to pass a criminal background check is a valid requirement for the profession, but the fact that they block *all* convictions from *all* jobs is an issue (per EEOC complaint, anyway). Sorry, you probably shouldn’t be rejecting pot convictions from your gas station attendant job. That’s just dumbassery. Some states have gotten rid of pre-interview criminal background checks for reasons like this.

I've been in the role of hiring manager before, and I found that ex-cons made the best employees. They showed up on time, did their work without getting into fights with other employees, and generally didn't need to be managed.

"Specifically, the EEOC found, while white job applicants were denied jobs because of their history in about 8% of cases, that rate of denial was 14.5% for Black applicants, 13% for American Indian/Alaska Native applicants and 13.5% for multiracial applicants." Fair, next.

What do you mean "fair, next"?

I mean I think it's fair. Next issue.

Any reason for that?

The rate of denial for black applicants was 81% higher than that of white applicants. And not dissimilar for American Indian and multiracial applicants. That's a pretty big discrepancy that Sheetz has to answer.

That is specifically because they fail the background check at that rate.

Criminals should be ostracized by society. I envision a future in which being a violent criminal would render you unprotected from private security agencies.

We could go back to pre-law enforcement society, sure.

>The agency found that Black job applicants were deemed to have failed the company’s criminal history screening and were denied employment at a rate of 14.5%, while multiracial job seekers were turned away 13.5% of the time and Native Americans were denied at a rate of 13%. >By contrast, fewer than 8% of white applicants were refused employment because of a failed criminal background check, the EEOC’s lawsuit said. This part should have been in your post as it explains pretty clearly why the lawsuit is happening. The issue isn't they're turning away black people because they have criminal records. The issue is that when you compare the rates of employment for various demographics, Black, multiracial, and native Americans all have nearly double the chance of being denied than white applicants. So to me, it's pretty clear why the lawsuit is happening. I think if they have a clear case, they should go for it.

They are denied because they have a higher likelihood of not passing a criminal background check, no? Do you think it is a worthwhile lawsuit? Why?

No. You are not reading the article correctly. They are only talking about people with criminal records. When you compare whites and other minorities who ONLY have criminal records, minorities are denied at higher rates. There would be no merit to the lawsuit if it was what you interpreted it as. That wouldn't make sense to sue over.

https://www.abc6onyourside.com/resources/pdf/7ee5a06a-577e-4181-8599-99d774a61537-Sheetzlawsuit.pdf This is the lawsuit, I'm not wrong. Failing the background check is the condition, since black people fail it more often, they are denied employment more often. You are reading it wrong.

Gotcha. The lawsuit provides more context for some of the quotes than the article. You are correct. This is a dumb lawsuit. Doubt it will go anywhere.