The Federal Trade Commission (“FTC”) and the Equal Employment Opportunity Commission (“EEOC”) agree that background checks could have a “disparate impact” on black job applicants. 

The doctrine of disparate impact is applied in the employment context and occurs when an employment policy is racially-neutral on its face, but has the effect of discriminating against members of a minority group.  The FTC and EEOC have released new compliance guidelines, which advise employers to be careful when basing employment decisions on background problems that may be more prevalent among a certain race.

  The EEOC has stated that African Americans are far more likely to have a criminal record, which in turn, may exclude them from job offers after employers conduct background checks.  In 2011, the NAACP lobbied the EEOC to apply the disparate impact analysis to background checks and compelled employers to eliminate questions about felonies on job applications.  Months later, the EEOC issued an enforcement guidance on the issue and recommended that employers not ask about convictions on job applications.  The EEOC warned employers that it could “investigate disparate impact charges challenging criminal-record exclusions of black job candidates.” 


 Last week, New York City Mayor Bill de Blasio announced a settlement to pay $98 million in back pay, including $6 million in medical benefits, to those who have filed claims against the New York City Fire Department on grounds of racial bias.  As part of the settlement, the fire department also agreed to create the position of chief of diversity, who will report directly to the fire commissioner, and a diversity advocate who will monitor hiring practices and training for discrimination.

For years, civil rights groups have advocated on behalf of minorities whose efforts to join the fire department have been unsuccessful due to institutional biases.  Civil rights groups have argued that the entrance exams used by the fire department were biased against minority applicants.  Judge Nicholas G. Garaufis of the Federal Court in Brooklyn, N.Y. ruled that the entrance examination was indeed a violation of civil rights laws and the U.S. Constitution.  As such, he ordered the creation of a new exam and reforms in hiring practices, which were overseen by a court-appointed monitor.  Although Judge Garaufis’ ruling was appealed, the City did not dispute the ruling that the entrance exam was discriminatory, but rather, it challenged the notion that the discrimination was intentional.

As litigation continued, however, a new exam was designed, the fire department increased recruiting in minority neighborhoods and implemented special training sessions for new recruits.  From 2002 to 2013, the percentage of minorities in the department grew from 8 percent to 16 percent, and in December, the most-racially diverse class in the history of the fire department graduated from the fire academy.