August 10, Arrest and Conviction Records as a Barrier to Employment

Transcription

1 August 10, 2011 Chair Berrien Commissioners Ishimaru, Barker, Feldblum and Lipnic U.S. Equal Employment Opportunity Commission 131 M Street, N.E. Washington, DC By to commissionmeetingcomments@eeoc.gov Re: Arrest and Conviction Records as a Barrier to Employment Dear Chair Berrien and Commissioners Ishimaru, Barker, Feldblum, and Lipnic: Community justice advocates at the Sargent Shriver National Center on Poverty Law assist people with criminal records participate fully in family, community, and economic life. We advocate for laws and policies that increase access to employment, education, health care, housing, and income supports and against laws and policies that irrationally limit opportunities. We represent individuals with criminal records in actions to lower or eliminate barriers created by their records. And we work to change public attitudes toward people who have interacted with the criminal justice system. On behalf of the clients we serve, the families in our communities affected by these issues, and our community partners who assist individuals with criminal records secure jobs we thank you for examining arrest and conviction records as employment barriers. Below we will describe the exponential and often misinformed use of criminal records by employers in the hiring, promotion, and retention process and the disparate impact on minorities. We also will encourage the EEOC to issue updated guidance on the use of criminal records, to educate employers (including those who shape employment policies, such as insurers, legal counsel, and professional and trade organizations), people with criminal records, public officials and policy makers, and the public at large on the civil rights laws limits on the use of records in employment decisions, and to direct enforcement efforts at employers and others whose misuse of records is illegally depriving people of employment opportunities. The Growth in Use of Criminal Records in Employment Decisions Over the past 15 years, the number employers conducting criminal background checks has increase exponentially to where only a small number do not conduct criminal background 1

2 checks. 1 Moreover, these checks affect the job prospects of the 65 million individuals nationwide who have criminal records. 2 The impact of criminal record discrimination on the ability of individuals who have been incarcerated to take care of themselves and their families has been well documented. A report released by Pew Charitable Trusts last year showed that this form of discrimination rendered individuals who have been incarcerated significantly more likely to be unemployed, underemployed, and underpaid than they would be if they were never incarcerated. Specifically, people who have been incarcerated earn 40% less per year, work 9 fewer weeks, and earn 11% less per hour, than they would have earned prior to their incarceration. 3 Those numbers are amongst people who can find jobs; they do not take into account the significant numbers of individuals who are not able to find work. A National Institute of Justice study found that as many as 60% of individuals who were incarcerated are not able to find any job, at any point, a full year after release. 4 In places like Illinois, with 82% of people with records residing in 10 zip codes, the weight of these discriminatory practices has left entire populations and communities mired in poverty. The Shriver Center s Interest In recognition of the difficulties facing this vast population, Shriver Center lawyers have been advocating for years for policies that limit employers access to irrelevant criminal record information and help applicants demonstrate to employers that that they do not present inordinate hiring risks. Although Illinois laws offer some relief for people with criminal records, state-specific remedies will never be sufficient to address a problem of this size and scope. Although we continue to work towards expanding employment opportunities for this population in Illinois, we are convinced that nothing will have a larger impact on this issue than the EEOC s robust enforcement of Title VII of the Civil Rights Act of 1964, including the release of an updated policy guidance advising employers on how to use criminal background checks without unjustifiably discriminating against people with criminal records. 1 Evren Esen, SHRM Workplace Violence Study, Society for Human Resource Management, (January 2004) at 19.Only 7% of employers did not conduct criminal background checks when hiring applicants, up from 51 percent in Million Need Not Apply: The Case for Reforming Criminal Background Checks for Employment, Michelle Natividad Rodriguez, Maurice Emsellem. 3 Collateral Costs: Incarceration s Effect on Economic Mobility, The Pew Charitable Trusts, Available at: FINAL.pdf 4 US Department of Justice, Office of Justice Programs, National Institute for Justice, When Prisoners Return to the Community: Political, Economic, and Social Consequences, November 2000, Issue 9. available at: 2

3 Disparate Impact The EEOC s enforcement of Title VII, updating its policy guidance, and education efforts are crucial to stopping the use criminal records as a proxy to prevent people of color from accessing the job market. People of color are disproportionately arrested, convicted and incarcerated. African Americans, for example, are about four times more likely to have a felony conviction as whites. 5 On the Bureau of Justice Statistics website, users can control the search inputs to break down the arrest, adjudication, conviction, incarceration and imprisonment rates of people of various races based on age, gender, severity of crime, number of priors, etc. 6 The comparisons show whites are arrested, adjudicated, convicted, incarcerated or imprisoned far less frequently than other racial groups. This disproportionate contact and punishment by the criminal justice system is not only true on the national level; it is true here in Illinois, where over 86% of the daily admissions to the Cook County Jail in Chicago in 2010 were minorities, 7 and an average of 80% of all persons admitted to Illinois prisons for drug offenses are African American. 8 Given the magnitude of these disparities, it is important for the EEOC to update its policy guidance to combat the lasting collateral consequences of people of color s disproportionate contact with the criminal justice system and ensure that employers do not violate the civil rights of members of our communities. Employers Use of Criminal Records We want to call the EEOC s attention to the fact that employers have taken advantage of loopholes to discriminate against people with criminal records without significant risk of being sued, and we need updated policy guidance from the EEOC to combat those loopholes. Our clients and community partners have consistently informed us of various practices to deny jobs to this population. For example, employers orally ask applicants about non-convictions and sealed records to avoid having the paper trail that would otherwise give rise to a lawsuit under Title VII. Many employers use stale criminal background check to access records that have since been sealed or expunged. Finally, a number of employers fire workers with criminal records for minor infractions to reap the reward of tax credits while avoiding a reputation for hiring convicts Million Need Not Apply: The Case for Reforming Criminal Background Checks for Employment, Michelle Natividad Rodriguez, Maurice Emsellem. 6 Bureau of Justice Statistics re Recidivism Rates. 7 Cook County Sheriff s Reentry Council Research Bulletin, March 2011 Issue. 8 Majority Report of the Disproportionate Justice Impact Study Commission 3

4 We also want to call the EEOC s attention to the fact that many employers do not bother trying to get around Title VII. Many simply flat out violate it. A study conducted by the National Institute of Justice found that 65% of employers surveyed comfortably responded that they refuse to hire individuals with criminal records regardless of the offense on the individual s record. 9 Updated policy guidance from the EEOC that addresses these concerns will put the EEOC and other advocates in a better place to protect the civil rights of those in our communities who often can not get a job at all. Professional and Occupational Licenses Open Doors to Jobs The EEOC is also uniquely positioned to pressure licensing agencies in each of the 50 states to clean-up the piecemeal and dated requirements of each license and to adopt the EEOC s policy guidance (whether updated or not) in their licensing schemes. Individuals often desperately need these professional or occupational licenses to start businesses or get decent paying jobs. By infusing some much needed consistency and fairness in the process, the EEOC would help remove the fog that hangs around the decision making process and various license requirements. In Illinois, for example, over 320 occupations are regulated by some form of license, and nearly 60 of them contain restrictions that may bar individuals with criminal records from getting a license. 10 The EEOC, through issuing guidance, has the ability to greatly influence these agencies and make lasting changes so that these statutory schemes are consistent with our civil rights. When it issues updated guidance the EEOC should specifically target not only licensing agencies, but also the professional and trade organizations which often are the ones behind these overly broad licensing restrictions, for education. We think the EEOC should suggest that state and federal licensing laws and regulations be revised to delete all their current, extremely diverse language regarding criminal records and replace it with the language of the EEOC s guidance. The EEOC should put state legislatures and Congress on notice of what Title VII demands and respectfully suggest an overhaul of current licensing laws as well as the inclusion of Title VII compliant language in future legislation. Employer Education The EEOC s updated guidance could also assist employers by educating them on criminal records. At present, many employers rely solely on criminal records to determine whether an applicant is a hiring risk. Too many employers are simply unaware that criminal background checks are rife with errors and even fewer know how to actually read the results of a criminal 9 US Department of Justice, Office of Justice Programs, National Institute for Justice, When Prisoners Return to the Community: Political, Economic, and Social Consequences, November 2000, Issue 9. available at: 10 Illinois Department of Employment Security s listing of Professions Regulated in the State of Illinois. Available at: 4

5 background check. 11 Consequently, employers unnecessarily reduce their hiring pool, excluding many competent people who would, if hired, be great employees. The second issue is that employers often interpret a clean criminal record as an indication that an applicant is risk-free and may not undertake the time-tested risk-assessment steps of checking references and using other assessment tools. The EEOC would be doing employers a great service if, in updated guidance, it not only tells employers what they should not do (reject people based soley on their records), but what they should do. Arrests and Non-convictions We also encourage the EEOC to consider updating and clarifying its guidance on arrests. We think that there may be confusion regarding just what is meant by arrests. We think that equal opportunity would be served if the Commission clearly stated that employers may not inquire into or use non-convictions in employment decisions. Non-convictions include all those possible outcomes other than unreversed and unvacated convictions or guilty pleas, such as arrested but released without charges, charges dismissed, tried and found not guilty, found guilty but conviction reversed on appeal or vacated in post-conviction proceedings. The terminology for non-convictions and the reasons leading to non-conviction vary from jurisdiction to jurisdiction, perhaps even county to county. The current lack of clarity leaves persons with nonconvictions in a kind of legal limbo and employers without clear guidance. We urge the EEOC to examine its guidance on arrests and clarify it to cover all non-convictions. Sealed and Expunged Records and Evidence of Rehabilitation We also urge the EEOC to consider including a prohibition on employers inquiring about or using criminal records that have been sealed or expunged in hiring decisions. States like Illinois which have allowed judicial sealing or expunging of criminal records did so in part because of the disproportionate involvement of minorities in the criminal justice process. The EEOC should support such state efforts. We also urge the EEOC to address the relevance of evidence of rehabilitation in its updated guidance. Employers often justify discriminating against individuals with criminal records by claiming that such individuals are not fully rehabilitated upon completion of their given sentence, are less likely to be law abiding, and may make employers more vulnerable to negligent hiring suits. As of January 1, 2010, Illinois Certificate of Relief from Disabilities (730 ILCS 5/ ) and Certificate of Good Conduct (730 ILCS 5/ ) were amended to serve as a tool to combat these persistent and pervasive stigmas associated with having a criminal record. 11 Bad Data Fouls Background Checks, Kim Zetter, The Wired Magazine, March 11, Available at see also, Advocates Complain of Background Check Errors, Scott Michels, ABC News, October 13, Available at see also, Woman Loses Job Due to Error in FBI Criminal Database, Kim Zetter, The Wired Magazine October 30,

6 In order to obtain these certificates, the presiding judge of the criminal court must find, based on the clear and convincing evidence in a contested formal hearing, that the individual petitioning for the certificate is a law abiding citizens and fully rehabilitated. Therefore, certificates are seen as a judge s finding that a person is no more likely to offend than any other law abiding citizen. Consequently, having a certificate goes a long way toward assuaging the oft-stated employer concern of a person reoffending. Furthermore, employers cannot be held civilly or criminally liable for an act or omission by an employee who has been issue a certificate, except for a willful or wanton act by the employer in hiring the employee who has been issued a certificate. 730 ILCS 5/ (f); see also 730 ILCS 5/ (c). Meaning, these certificates also serve as a shield to protect employers from being held liable for negligent hiring should they hire someone with a certificate. Nevertheless, many employers ignore the certificates and reject job applicants without individual case analysis. We urge the EEOC to require employers who reject otherwise qualified applicants who present certificates such as those granted in Illinois to justify their rejections. Employers Misplaced Reliance on Advisers We also urge the EEOC to direct employers to require those advising them to use criminal records in hiring decisions to produce data supporting such use before following their advice. Employers anecdotally say that their insurance companies threaten higher premiums if they employ people with criminal records and their lawyers warn about potential liability for negligent hiring. Insurers should produce actuarial data and lawyers case law supporting their positions before employers are allowed to take refuge behind their advice. Timeliness of an Updated Guidance An updated guidance from EEOC is timely. Attorney General Eric Holder, Secretary of Labor Hilda Solis, and several governors (Mitch Daniels of Indiana, Jeb Bush of Florida, Deval Patrick of Massachusetts) have implemented, or advocated on behalf of, policies that reduce employment barriers for people with criminal records. These positive events notwithstanding, employers (public and private) and governmental agencies continue to utilize blanket prohibitions that disproportionately deprive people of color, especially African Americans and Latinos, of employment opportunities for which they are otherwise qualified. Now is the time for the EEOC to take advantage of this momentum and update its decades-old policy guidance. Doing so would properly balance the civil rights of workers and the safety and security needs of the employer community. An updated guidance would also provide the necessary direction to the employer community, to the private screening firms, to public employers at all levels of government, and to workers struggling to support their families and their communities hard hit by unemployment. 6

7 Conclusion For the reasons stated above, we urge the EEOC to (1) aggressively enforce Title VII; (2) update its policy guidance on the use of arrest and conviction information; (3) urge licensing agencies to create licensing standards that are consistent with Title VII; and (4) expand its education and outreach about the requirements of Title VII. Thank you for your time and any consideration you devote to this issue which is so vital to millions of people in the United States struggling to provide for themselves and their families. Sincerely, Margaret Stapleton, Senior Staff Attorney, Director of the Community Justice Marie Claire Tran-Leung, Staff Attorney, Soros Fellow Todd Belcore, Staff Attorney, Equal Justice works Fellow sponsored by Greenberg Traurig , v. 1 7