The NELP report begins by pointing out that as background checks have become more popular and inexpensive, “the share of the U.S. population with criminal records has soared to over one in four adults.” A 2010 survey by the Society of Human Resources Management, the largest association of human resources personnel in the nation, found that 92 percent of their members – mostly large employers – perform background checks on some or all job candidates.
“Across the nation there is a consistent theme: people with criminal records ‘need not apply’ for available jobs,” the NELP report states. The report lists companies that impose overbroad background checks, including Bank of America, Aramark, Lowes, Accenture, Domino’s Pizza, Adecco USA, Burlington Northern Santa Fe Railroad Co., RadioShack and Omni Hotels.
Although many companies require background checks for the purpose of determining the safety or security risk of a prospective employee, the existence of a criminal record as a predictor of negative work performance is debatable.
Ensuring that all workers have job opportunities is a matter of public concern, and is critical for the struggling economy. Studies show that ex-offenders who have stable employment have lower recidivism rates. Moreover, “[n]o healthy economy can sustain such a large and growing population of unemployable workers, especially in those communities already hit by joblessness,” the NELP report notes.
“Stable employment helps ex-offenders stay out of the legal system. Focusing on that end is the right thing to do for these individuals, and it makes sense for local communities and our economy as a whole,” said Hilda L. Solis, Secretary of the U.S. Department of Labor.
Yet even getting a job interview can be tough for those with the stigma of a criminal record. One prominent researcher found that reporting a past conviction on a job application “reduces the likelihood of a job callback or offer by nearly 50 percent, an effect even more pronounced for African American men than for white men.”
Using arrest and conviction records to screen potential employees invites scrutiny under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, gender, national origin and other protected categories. In 1987 the EEOC issued policy guidelines which recognized that barring job applicants who have criminal records “disproportionately excludes African Americans and Latinos because they are overrepresented in the criminal justice system.”
To pass muster under Title VII, the EEOC required employers to make an individual assessment of 1) the nature and gravity of the applicant’s offense or offenses, 2) the time that has passed since the conviction and/or completion of sentence, and 3) the nature of the job position held or sought.
Yet as a 2010 lawsuit against Accenture alleged, many companies “reject job applicants and terminate employees with criminal records, even where the criminal history ... has no bearing on the ... fitness or ability to perform the job.” See: Arroyo v. Accenture, LLP, U.S.D.C. (S.D. NY), Case No. 1:10-cv-03013.
Additionally, background check companies are using software that systemically excludes people with criminal records.
“ChoicePoint, which accounts for an estimated 20 percent of the U.S. background check industry conducting more than 10 million annually, played an integral role in designing and implementing” RadioShack’s policy of excluding job applicants “convicted of a felony in the past 7 years,” by creating “an online application system that automatically dismissed anyone who self-disclosed a criminal record history.”
The NELP report argues that not only do such overbroad criminal background checks constitute civil rights violations, they also disadvantage employers by artificially limiting the pool of job candidates, because they eliminate qualified persons whose “criminal record empirically may be shown to be irrelevant as a factor in a hiring decision.”
The report cites a major study of people with felony convictions which found that 18-year-olds arrested for burglary had the same risk of being arrested again as same-aged persons with no criminal record after 3.8 years had passed since their first arrest (for aggravated assault it was 4.3 years, while for robbery it was 7.7 years).
A “criminal record can be a blunt, misleading tool” in determining the risk a worker poses on the job. A criminal record is difficult to interpret, as it can include arrests for which there was an acquittal or dismissal of the charges. Commercial background checks may contain inaccuracies; even the FBI’s checks are out of date 50 percent of the time.
According to the EEOC, “an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.” Lawsuits challenging such exclusionary employment practices have seen a resurgence in the past several years; for example, at least five major civil rights actions were filed in 2010 against large employers.
Still, criminal background checks continue to be widely used to exclude people from work. NELP conducted a survey of Craigslist, a website that offers free classified ads in approximately 400 geographic areas in the United States. Craigslist receives over one million new job ads per month. The survey found four categories for employers’ no-hire poli-cies: 1) no arrests/clean or clear records, 2) no felony or misdemeanor convictions, 3) no felony convictions, and 4) no convictions within a specified time frame. These hiring policies were listed by anonymous employers, large companies and staffing firms.
The Craigslist survey indicates that the threat of litigation has not changed the widespread practice of excluding job applicants based solely on criminal records.
The NELP report makes several recommendations. The first is for the federal government to enforce civil rights and consumer protection laws that apply to criminal background checks for employment in both the public and private sectors. The federal government should also be a model for employers by adopting fair hiring policies in federal employment and contracting.
Next, state and local governments should certify that their hiring policies comply with federal civil rights standards, and should launch employer outreach and education campaigns. Finally, the employer community needs to assume a leadership role to meet the mutual interests of job applicants and the employers seeking to hire them, in terms of implementing fairer policies related to criminal background checks.
On April 25, 2012, the EEOC released new guidelines on criminal background checks to help employers comply with Title VII when refusing to hire people with criminal records, since minorities are overrepresented among ex-offenders. “The ability of African-Americans and Hispanics to gain employment after prison is one of the paramount civil justice issues of our time,” stated Stuart Ishimaru, one of the EEOC Commissioners.
PLN had submitted formal comments to the EEOC following a July 2011 meeting in which the Commission addressed the issue of employment barriers for ex-offenders; that meeting resulted in the release of the new guidelines. [See: PLN, Sept. 2011, p.32].
The updated guidelines recommend that employers give applicants an opportunity to explain their criminal records rather than reject them automatically. This will let ex-offenders point out any inaccuracies in the background check, such as dismissed charges, and try to convince a prospective employer that they are rehabilitated. In some cases, they can explain that businesses that hire certain former prisoners may qualify for the Work Opportunity Tax Credit.
The EEOC also recommends that employers not ask about arrest histories on job applications, since arrests are not tantamount to convictions. While the guidelines are not mandatory, and although a felony conviction does not constitute a “protected class” for purposes of job discrimination, the guidelines provide a framework that businesses use in order to comply with federal anti-discrimination laws based on race, national origin and other applicable factors.
“For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record,” according to the EEOC.
“The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders,” said EEOC Chair Jacqueline A. Berrien.
Sources: “65 Million ‘Need Not Apply’: The Case for Reforming Criminal Background Checks for Employment,” National Employment Law Project (March 2011); Associated Press; EEOC press release (April 25, 2012)
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