The Lawyers’ Committee for Civil Rights Under Law applauds the 4-1 bi-partisan decision by the Equal Employment Opportunity Commission (EEOC) to issue updated guidance that will greatly reduce the misuse of criminal history background checks to deny employment to persons of color. The Guidance notes that approximately 92 percent of employers use criminal histories to screen job applicants. The new guidance strengthens enforcement efforts against employers who are misusing criminal history background checks and provides clear guidance to employers on the appropriate use of such background checks. The guidance notes the well established principle that Title VII preempts state and local laws, such as laws that impose lifetime bans on employing persons whose convictions from years ago bear no relation to their job performance and behavior today.
As a national leader in combating employment discrimination, the Lawyers’ Committee launched the Access Campaign, which works to remove barriers to employment for minority workers. This campaign attacks the indiscriminate use of both criminal history information and credit information through litigation that challenges the improper use of background check information. The Access Campaign also conducts public education regarding the use and abuse of background checks, and advocates for federal, state and local officials and legislators to pass laws restricting the use of background information.
“The use of arrest records, including arrests that occurred decades earlier or had not resulted in convictions, to screen people applying for jobs contributes significantly to the unemployment of African American, Latinos and Native Americans,” said Lawyers’ Committee Executive Director Barbara R. Arnwine.
As cited by the EEOC, persons who have been incarcerated in the United States include 1 of 17 whites, 1 of 6 Hispanics, and 1 of 3 African Americans. Based on these and similar statistics, the new guidance effectively establishes a presumption for agency investigators that use of criminal records has a disparate impact on minorities, a presumption that can be rebutted by an employer by showing that their own hiring practices do not have a disparate impact. Equally important, the guidance rejects employer policies of permanently disqualifying persons with criminal records and reiterates existing law requiring that an employer show that the disqualification is job-related, spelling out the acceptable ways in which employers can show job relatedness. In most instances, employers must give individualized consideration to the applicant’s work history and other evidence of law-abiding behavior.
“In this economic climate of continued high unemployment, particularly in communities of color, it was critical and truly momentous for the EEOC to take such a proactive step to help all workers and employers,” said Ray McClain, director of the Lawyers’ Committee’s Employment Discrimination Project. “No longer will persons with criminal histories be permanently excluded from the workforce.”
The Lawyers’ Committee has received many stories of egregious unfairness in denying jobs to outstanding citizens simply because years earlier they had encounters with the law. For instance, the Lawyers’ Committee is co-counsel in a major suit seeking to represent a class of hundreds of thousands of minority workers who were refused employment by the Census Bureau during the 2010 Census for as little as an arrest record without any conviction.
In another such case, a man has been denied a job as a master electrician because of drug convictions that were more than 25 years old. He has had no subsequent encounters with the law, returned to college, and is a master electrician. This man’s eligibility for an electrician job should be judged on his competence as an electrician, not on what he did more than 25 years ago. The new guidance will mandate exactly that to employers.
“The updated Enforcement Guidance issued today will aid the Lawyers’ Committee in our continuing efforts on behalf of minority workers, particularly our ongoing evaluation of potential litigation on behalf of the groups most impacted – African American, Latino and Native American workers denied employment because background checks report they have a criminal record or a poor credit history,” Arnwine said. “We will also continue to urge the EEOC to issue long awaited guidance on the misuse of credit history to deny employment, a practice which falls most heavily on minorities and the unemployed.”