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BY LataNYa SWeeNe Y
Employers frequently ask whether
applicants have ever been arrested or
charged with a crime, but if an employer disqualifies a job applicant
based solely upon information indicating an arrest record, the company
may face legal consequences. The U.S.
Equal Employment Opportunity Commission (EEOC) is the federal agency
charged with enforcing Title VII of the
Civil Rights Act of 1964, a law that applies to most employers, prohibiting
employment discrimination based on
race, color, religion, sex, or national
origin, and extended to those having
criminal records. 5, 11 Title VII does not
prohibit employers from obtaining
criminal background information, but
a blanket policy of excluding applicants based solely upon information
indicating an arrest record can result
in a charge of discrimination.
To make a determination, the
EEOC uses an adverse impact test that
measures whether certain practices,
intentional or not, have a disproportionate effect on a group of people
whose defining characteristics are
covered by Title VII. To decide, you
calculate the percentage of people affected in each group and then divide
the smaller value by the larger to get
the ratio and compare the result to
80. If the ratio is less than 80, then the
EEOC considers the effect disproportionate and may hold the employer responsible for discrimination. 6
What about online ads suggesting
someone with your name has an arrest record? Title VII only applies if you
have an arrest record and can prove the
employer inappropriately used the ads.
Are the ads commercial free
speech—a constitutional right to display the ad associated with your name?
The First Amendment of the U.S. Constitution protects advertising, but the
U.S. Supreme Court set out a test for
assessing restrictions on commercial
speech, which begins by determining
whether the speech is misleading. 3 Are
online ads suggesting the existence of
an arrest record misleading if no one
by that name has an arrest record?
IllustratIon by alex WIllIamson
Google ads, black names and white names,
racial discrimination, and click advertising.
do online ads suggestive of arrest records appear
more often with searches of black-sounding names than
white-sounding names? What is a black-sounding name
or white-sounding name, anyway? How do you design
technology to reason about societal consequences like
structural racism? Let’s take a scientific dive into online
ad delivery to find answers.
“Have you ever been arrested?” Imagine this
question appearing whenever someone enters
your name in a search engine. Perhaps you are in
competition for an award or a new job, or maybe
you are in a position of trust, such as a professor or a
volunteer. Perhaps you are dating or engaged in any
one of hundreds of circumstances for which someone
wants to learn more about you online. Appearing
alongside your accomplishments is an advertisement
implying you may have a criminal record, whether
you actually have one or not. Worse, the ads may not
appear for your competitors.