The Impact of Criminal Background Checks and the EEOC s Conviction Records Policy on the Employment of Black and Hispanic Workers

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1 The Impact of Criminal Background Checks and the EEOC s Conviction Records Policy on the Employment of Black and Hispanic Workers Written Testimony submitted to The United States Commission on Civil Rights Friday, December 7, 2012 Presented by: Roberta Meyers Director of National H.I.R.E. Network Legal Action Center 225 Varick Street, 4th Floor New York, NY Phone: ext rampeeples@lac.org

2 Thank you for hosting this briefing to discuss the impact of criminal record checks on black and Latino job seekers in the labor market. I am Roberta Meyers, Director of Legal Action Center s National Helping Individuals with criminal records Reenter through Employment Network (also known as H.I.R.E.). The Legal Action Center is the only nonprofit law and policy organization whose sole mission is to fight discrimination against people with criminal records, histories of addiction, or HIV/AIDS and to advocate for sound public policies in these areas. HIRE, which is a project of Legal Action Center, aims to increase the number and quality of job opportunities available to people with criminal records by changing public policies, employment practices and public opinion. Since 2001, my project has provided leadership on public policy advocacy and technical assistance and training all across the country to private and public agencies on strategies to eliminate or reduce the number of criminal record barriers faced by jobseekers in the labor market. For the past decade we have used the Equal Employment Opportunity Commission s (EEOC) guidance on the consideration of arrest and conviction records as a policy model that states could adopt as a fair employment standard to give more qualified individuals with criminal histories a fair opportunity to compete for employment and qualify for occupational licensing. We have also used it to educate employers on the use of criminal records in hiring decisions. While conducting these educational activities over the years we have also worked with other legal and policy groups to encourage the EEOC to strengthen its position on employers use of criminal record screenings as well as urged them to become more vigorous in its investigation of criminal record-based claims of discrimination. Therefore, we considered it a tremendous victory when the EEOC released its update of the guidance it had released nearly 30 years ago 2

3 that discouraged employers from establishing blanket bans against hiring people with arrest and conviction records. The update of the EEOC guidance includes new provisions that: Put employers on notice that categorical exclusions for people with certain arrest and conviction records may violate Title VII; Emphasized its earlier recommendation that job applications not ask about criminal records, and if they do ask, that they limit inquiries to conviction records for which exclusion would be job-related with business necessity; Offered a series of examples of common policies and practices that violate Title VII; and Informed local and state governments that barring people with certain criminal records from jobs or occupational licenses also could violate Title VII. This issue has become of greatest importance because (1) there are over 65 million individuals with criminal records in this country; (2) a criminal record is usually the number one automatic disqualifier for employment and we know that many employers (public and private) will go as far as noting it on job postings; and (3) we cannot ignore that criminal records serve as a double stigma for people of color. In 2006, HIRE partnered with the Center for Community Alternatives in New York to conduct a project called Unchaining Civil Rights, which identified, documented and described the institutional and structural exclusions in what we called the four Es - employment, education, enfranchisement and equality and the ways that these exclusions result in de facto discrimination of racial minorities. We concluded that the structural and institutional barriers to education and employment for people with criminal records are more than collateral consequences; they are an 3

4 abrogation of fundamental civil rights 1. The release of Michelle Alexander s book in 2011, The New Jim Crow, catapulted this issue into mainstream media and has really forced the country to take note and acknowledge that people of color are significantly and disproportionately represented in the criminal justice system and that a criminal record has become a surrogate for race-based discrimination throughout the U.S. Employment statistics for blacks and Latinos, particularly males, continue to be worse than any other demographic 2. The experimental audit studies of Devah Pager out of Princeton University encapsulate the real challenges faced by black and Latino males with or without criminal histories in the labor market. In the last study she and Bruce Western conducted in 2004 in New York City, they concluded that a black man without a criminal record was less likely to get a job than a white man with a criminal record 3. Needless to say, a black man with a criminal record barely stood a chance at getting a call back for a job. Race discrimination and race bias is pervasive in the job market and we have to attack it from every angle through which it exists. We respectfully ask that the members of the U.S. Commission on Civil Rights consider supporting the EEOC s position on limiting the use of criminal background checks in employment decisions as well work with HIRE to promote criminal record barriers as civil and human rights issues, as they are. Here are a few additional thoughts. Few states (only 14) have laws prohibiting discrimination against individuals with criminal histories in public and/or private employment and/or for occupational licensing, 1 See 2 U.S. Department of Labor, Bureau of Labor Statistics. The Employment Situation October Retrieved from 3 Devah Pager, Bruce Western, & Bart Bonikowski, Discrimination in a Low-Wage Labor Market: A Field Experiment, American Sociological Review, 77, pp (2009). See also Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, 623 The Annals of the American Academy, pp (2009). 4

5 and as you know there is no federal law 4. Therefore, we need federal enforcement agencies to commit to ensuring that qualified individuals with criminal histories are given a fair chance and opportunity to work and not face discrimination. Most states give unfettered access to criminal record information and indefinitely, which perpetuates the lifelong stigma suffered by millions of individuals with criminal records who are disproportionately people of color. Until now, the employer community was not very concerned about being challenged on their discriminatory hiring practices because the threat of a criminal record-based discrimination lawsuit seemed more unlikely and remote than a negligent hiring liability suit. Employers must continue to be encouraged to not consider arrest records that did not result in a conviction as well as old or minor convictions that really cannot justifiably be considered relevant to the ability and potential behavior of an applicant. We also ask that the Commission: Recommend the creation of a federal civil and human rights standard that encourages employers to hire qualified applicants with criminal histories and prohibits flat bans against hiring qualified individuals with criminal histories. Recommend that employers and other non-law enforcement agencies be prohibited from inquiring about or using arrest information that did not lead to conviction or missing 4 Ariz. Rev. Stat (E); Colo. Rev. Stat ; Conn. Gen. Stat. 46a-80, Conn. Gen. Stat i; Fla. Stat ; Haw. Rev. Stat (a)-(d); Kan. Stat. Ann (f); Ky. Rev. Stat. 335B.020 and 335B.070; La. Rev. Stat. 37:2950; Minn. Stat ; N.M. Stat , , and ; N.Y. Exec. Law 296(15), N.Y. Correct. Law ; 18 Pa. Cons. Stat. 9124, 9125; Wash. Rev. Code 9.96A.020, 9.96A.030, and 9.96A.060; Wis. Stat

6 dispositions on criminal record reports issued by the Federal Bureau of Investigation, state criminal record repositories, and commercial reporting companies. Support the enactment of a federal standard based on recommendations outlined in the EEOC guidance on the use of background checks for employment purposes when screening applicants with criminal records. Recommend that all current and future legislation that authorizes the disqualification of individuals with criminal records to include a waiver/appeal process whereby the applicant can challenge inaccuracies in criminal record reports, present evidence of rehabilitation and provide other mitigating information relevant to their criminal history and rehabilitation. Support the creation of a federal employment standard that limits how long a criminal record can be considered. The period of consideration of the criminal record should be based upon the severity of the individual s criminal history (i.e. misdemeanors-3 years, felony--5 years), and should be supported by social science research that measures the risk of re-offending. Recommend that the federal Office of Personnel Management (OPM) report to Congress annually on federal employment policies concerning people with criminal records. The annual report should include the number of individuals with criminal records who applied for positions, the number of individuals hired or denied, the types of jobs they applied for, and whether or not a denial for the position was based on their criminal record. Thank you for considering my comments on this critical issue. Criminal background checks and related employment and licensing policies continue to be an important civil and human 6

7 rights issue. Please consider HIRE as a resource as the Commission continues to work on this extremely important issue. 7