A blacklist (or black list) is a list or register of entities who, for one reason or another, are being denied a particular privilege, service, mobility, access or recognition. As a verb, to blacklist can mean to deny someone work in a particular field, or to ostracize a person from a certain social circle.

The New York Times just broke an interesting story about the growth of private, retail industry databases used by employers to track former employees suspected of theft. As these companies and their lists grow, they’re being used by a growing number of major retailers (Target, etc) as a part of their hiring process, in an attempt to exclude “dishonest” individuals.

Even the NYT can’t sugar-coat this. Getting on one of these lists is as easy as being suspected of not reporting small thefts, but clearing your name is next to impossible. No convictions are necessary and in many case very little detail or evidence is provided. Though the lists are (considered) “legal” (for the moment), they’re facing scrutiny and lawsuits from both regulators and workers.

Comments posted by readers were quick to point out a bunch more problems with this practice. By focusing on “employee theft”, it ignores problems like the epidemic of wage theft by employers and the well-documented connection between bad managers and theft. Many mentioned the relationship between petty theft, poverty and wealth inequality. Also, as one poster pointed out, it provides a frightening opportunity for personal retribution against women who spurn advances or report sexual harassment (or any number of similarly awful motives). One person even asked how it wasn’t considered libel, which under other circumstances it almost certainly would be.

There’s a very simple answer to that last question, and it cuts right to the heart of the matter. There are all sorts of laws – slander, libel, defamation, tortious interference, product disparagement, etc which might apply to a similar list of businesses, businesspeople or their goods. Suing somebody costs money, though, which chronically-unemployed victims of these lists don’t tend to have. The defendants, on the other hand, are large wealthy and influential corporations with very good lawyers. For the same reasons, most employees don’t dare speak out about what they see on the job. Those who blog about such things, or even some who’ve gone so far as to write bad reviews often get sued for their troubles. When the “little people” want to win a lawsuit, they have to join by the thousands into class-action suits, like one which settled with database giant LexisNexis last week for $13.5 million over “background checks” for debt collectors.

“Retail theft” is of course not the only area where such lists are taking off. Landlords are subscribing to “do-not-rent-to” lists of “bad tenants”. Colleges and universities are hiring social media sleuths to scour for data on their student athletes. Never has so much data existed about the population at large, nor has it ever been so easily searchable. Detailed information about our spending habits, credit history and virtually everything we do online. Did you know that the European Union is challenging Google over it’s database and “privacy policy” right now?

As the technologies which keep and collect these records become more complex, the possibilities get exponentially more frightening. For anybody with a bit of grounding in computers and statistics, it isn’t hard to imagine how one might write a simple program to identify any number of “sins” or “crimes” at least as well as today’s police. Combining phone, ATM and potato-chip purchase records, it shouldn’t be hard to identify thousands of dope-dealers, but how many others would be caught up in such a net? And, more importantly, what kind of “crimes” would it be directed against? It’s been years since MIT students were able to write a program that determines sexual preference based on one’s Facebook data alone, and Facebook’s own advertising software is now sophisticated enough to pick out gay teenagers and offer them help coming out. Target, the big-box retail chain that just landed all over our region, stunned the world (and at least one teenage girl’s father…) when it revealed it’s ability to determine not just when customers were pregnant, but even a rough estimate of their due dates, simply through a purchase history.

Of course, in a society which is already incredibly unequal, any simple test is only going to reveal what we already know. Most easy measures of crime (georaphy, demographics etc) tie it closely to factors like race and poverty. This happens for a lot of complex reasons (desperation, abuse, etc) and shows a very clear “research bias” in terms of what we consider to be a “serious crime” (usually not “white-collar crimes”), well-established racial biases by cops and courts and incredibly unequal access to decent lawyers. The temptation, unfortunately, is to go with an “easy answer” based on superficial observations, especially when they’re backed up by new, revered and largely misunderstood methods/technologies. Do we really need to create a new high-tech justification for not hiring or renting to people who are young, black and/or poor?

This isn’t such a stretch, either. Google’s already found itself in trouble when extensive testing showed searches for traditionally “black” names like “Ebony” or “Deshawn” generated 25% more ads for things like “criminal pardon services” (I get these too…). Google was quick to promise that it wasn’t intentional, which is (at least) plausible. There is any number of ways statistics could have linked “black” names to “crime” that wouldn’t have occurred (at first) to naive programmers, whether they looked at geography, media coverage or convictions. What’s important to note is that this would be true for many crimes (like pot-smoking) which white people commit at least as often.

There is no doubt that these private registries reflect, in many ways, the prejudices of the employers who contribute to them. When suspicion is all that’s required, how many people are going to end up barred from employment because something went missing and an idiot manager took the opportunity to blame the black guy or the girl with all the tattoos? How often will the lists be used for personal retribution against those who’ve raised complaints about pay, working conditions or sexual harassment? Blacklisting “troublesome” employees has a long and ugly history, and it’s not

Legal or not, these lists run the risk of becoming de-facto laws in themselves. With the number of us in “precarious” jobs on the rise, the ability to stay employed increasingly depends on our ability to get new jobs on a regular basis. When trying to make ends meet under these conditions, it’s only natural that some will turn to theft to make ends meet. Further marginalizing some of the poorest employees isn’t going to change this state of affairs, it’s only going to be one more step in the creation of a permanent, criminalized underclass. Workers are people, not products to be reviewed online on pay-per-view databases, and if we were we’d probably have more legal recourse. These lists and databases set a frightening precedent, and we’d be wise to fight them now before they become established.

For a real picture of theft in today’s world of precarious retail employment, you’re better off looking at studies like this. It surveyed thousands of “low waged” employees in several major cities. Two thirds, it found, experienced at least one form of “wage theft”, for an average loss of over $50/week or $2600/year for full-timers, or 15% of their earnings. For New York, Chicago and Los Angeles alone, this would total around $56 million each week. Against this, the departments which deal with labour law have seen a national loss of staff and resources. In some places, they’ve stopped even trying and simply refer plaintiffs to law firms. There are no “theft insurance” policies one can buy to avoid this, and no large private armies of “loss prevention” experts hunting the culprits. Unlike stolen merchandise, we don’t get to replace stolen wages at wholesale rates or raise our prices accordingly. We just get ripped off. Fifty bucks is an almost insignificant loss to most retail chains, but could make all the difference to a poor worker. Yet, while theft from the boss gets you charges and blacklisting, theft by the boss goes largely unpunished.

They don’t call it “precarious” employment for nothing, I suppose.