By Eve Tahmincioglu
msnbc.com contributor
updated 8/23/2010 9:50:25 AM ET 2010-08-23T13:50:25

Precious Daniels, an out-of-work medical technician from Detroit, never suspected that participating in a peaceful protest against an insurance company could some day hinder her chances of landing a job.

Stephanie O. of New York suspects she hasn’t been able to land a job because her unemployment has tarnished her credit rating. (She didn’t want her full name used because she fears it would hurt her continuing job search.)

For Anthony Gonzalez, it’s been more than two decades since he committed a series of felonies he attributes to past drug problems. He believes he’s paid his debt to society, having worked 17 years as a counselor for the Department of Corrections in New York after serving several years in prison. Unfortunately, Gonzalez, 51, who lives in Riverview, Fla., believes he is still denied jobs as a result of his record.

These people have three key things in common:

  • They were subjected to background checks by prospective employers.
  • They are unemployed.
  • They are minorities.

The latter two categories often get hit hardest by such employer snooping.

Many job applicants long have thought such background checks are unfair, yet they are growing in popularity thanks to technology making it easier to dig up dirt. But there is a growing backlash against the practice, including at least two major two lawsuits, and there are changes afoot at the state and national level.

Illinois this month passed a law prohibiting the practice of asking job candidates about their credit histories or denying them work based on past debt.

“A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930s," Gov. Pat Quinn said in signing the bill into law.

The Equal Employment Opportunity Commission also has been tightening the screws on employers who use credit and criminal background checks that have a tendency to disproportionately hurt African-Americans and Latinos.

“Depending on their nature, they can adversely impact certain minorities,” said Peggy Mastroianni, the EEOC’s associate legal counsel, referring to background checks.

The agency is involved in a closely watched lawsuit against Freeman, a convention management company. The commission claims the company rejected job applicants based on credit histories or "various types of criminal charges or convictions."

"This practice has an unlawful discriminatory impact because of race, national origin, and sex, and is neither job-related nor justified by business necessity," the commission said in its statement.

Martha Zackin, an employment attorney for Mintz Levin, who represents employers, said the EEOC has wanted to crack down on background checks for a while, but now with new leadership and a bigger budget is “not just trying to enforce the law but broaden it.”

Mastroianni maintains the EEOC has always held the position that background checks that have an adverse impact on a candidate are allowed only if they are "job related and consistent with business necessity.”

That distinction is at the heart of the debate. Many employers believe they should be able to use whatever information they can discover about a job candidate so they can find the best available person, especially in a job market filled with candidates.

Zackin, the employment attorney, contends employers should be able to take into account even an old criminal conviction or credit problem related to the broader economy.

“Is it fair? I don’t know. Is it human nature? Absolutely," she said. "We’re not living in a blind world. We all have concerns and predispositions.”

But some are fighting back.

A class-action lawsuit filed this year claims the Census Bureau illegally denied applicants jobs because of old criminal records or even minor offenses that never actually led to any charges. The suit claims the practice adversely impacted African-American, Latino and Native American candidates.

“We have over 100,000 people who this has affected,” said Sam Miller, an attorney with Outten & Golden, the New York law firm that brought the suit.

Daniels, who is African-American, and Gonzalez, who is Latino, are both plaintiffs in the Census suit.

“You need to make a rational decision based on facts as to whether someone is an actual threat to the public,” Miller said.

“If there’s someone with a violent felony and there’s reason to believe he or she will be a threat, then Census should not hire them."

But he said in other cases "the offense was so minor or so old, there’s no rational basis to believe they present any kind of threat."

The EEOC warned the Census Bureau about the practice in last year but nothing was done, according to Miller.

In January, Daniels, a 35-year-old phlebotomist from Detroit, was unemployed and looking for temporary work and decided to apply for a Census Bureau position.

Question #28 on the Census job application asked: “During the last 10 years, have you been convicted, been imprisoned, been on probation or been on parole?”

Daniels answered “no.” But a search by the Census Bureau found an FBI record because she was arrested in 2009 following the demonstration against Blue Cross Blue Shield of Michigan because she blocked a doorway and was charged with disorderly conduct. She spent a few hours in jail, was released on $50 bail, and eventually all the charges were dropped.

“It was totally unfair what happened,” she said. “If you protest for what you believe it, it shouldn’t be used as a discouragement.”

Gonzalez believed he was a perfect candidate for a Census job because he is bilingual, but he never heard back after the agency asked him about his three convictions in the 1980s. “No one told me it was because of that, but I knew. Obviously I was discriminated against,” he said.

Given that his past offenses were for burglary and weapons possession, Gonzalez said he understands why he tends not to get the benefit of the doubt. But, he says, “I’ve been an asset to society for over 20 years. When do I stop paying for the baggage of my past?”

A spokeswoman at the Census Bureau, Shelly Lowe, said the agency could not comment because the matter was in litigation.

Mastroianni suggested that job seekers who feel a background check unjustly caused them to lose out on a job or promotion should check with the EEOC to find out what their rights are. In certain states it may be illegal for employers to use credit histories or certain minor offenses against you.

Stephanie O., who is African-American, finds herself in a jobless Catch 22. Her recent financial problems have hurt her credit, but she needs a job to rectify the problem.

“My credit score is in the low 600s,” she said. “I've been out of work for nearly two years. I managed to pay my bills, but then I lost my unemployment benefits for seven weeks, and that really set me back. I had a good credit score at one time.”

She’s been looking for a job since 2008, and soon her unemployment checks could be cut off for good.

“I don’t really understand why that score should matter if I’m the right person for the job,” she said.

Eve Tahmincioglu writes the weekly "Your Career" column for msnbc.com and chronicles workplace issues in her blog, CareerDiva.net.

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