By Ray McClain, Director of the Employment Discrimination Project at the Lawyers’ Committee for Civil Rights Under Law
In late April, the Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Jackie Berrien, approved updated Enforcement Guidance on Consideration of Arrest and Conviction Records by employers. The Guidance analyzes clearly and comprehensively the restrictions that Title VII places on an employer’s use of any employment screen that has the intent or effect of excluding minority workers disproportionately from being hired or retained by the employer.
This post addresses the broader significance of the EEOC’s updated Guidance and the additional actions that are likely to be necessary to persuade employers that the Commission’s action is not merely symbolic, but requires employers to change their practices.
Significance of the Guidance
Pundits try to persuade the White public that we live in a “post-racial America” because President Obama is of mixed descent – Black African and White American. Both the Guidance and the Commissioners in their remarks prior to the vote laid out a few of the many statistics that starkly demonstrate that America today is anything but “post-racial”; the Guidance recounted that:
African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.
Virtually all public employers and 80 percent of private employers check all new applicants for employment to see whether they have records of recent arrests or criminal convictions. Over 90 percent check on at least some applicants. From the EEOC’s statistics, it is clear that the practice of so many employers in excluding ex-offenders from equal consideration in hiring takes a heavy toll on minority workers, especially African Americans, and helps to keep African American unemployment at consistently twice the rate of unemployment for white workers.
Depression-level rates of unemployment have plagued the African American community since early in the current recession. Unemployment for African American men has recently been as high as 18 percent of those seeking employment and about 25 percent when the numbers include African American men who would work if they thought they could find anyone to hire them. The rate has been 40 percent for African Americans 19 and younger.
The EEOC’s updating of Guidance on this critical issue can be a major step in opening many doors to jobs that for too long have been closed to many minority workers.
What did the Guidance do?
The current foreclosure crisis constitutes a monumental civil rights issue. Communities of color were targeted for risky mortgage loans, have experienced disproportionately high foreclosure rates, and have been stripped of vast amounts of wealth because of discriminatory lending practices. From 2005 to 2009, 
As disturbing as the practice of subjecting people accused of minor offenses to degrading strip searches is, it wouldn’t be a problem if those people weren’t thrown behind bars in the first place. Unfortunately, U.S. jails are full of people accused of minor, nonviolent crimes. One such person was Albert Florence (pictured), a 35-year-old Black man erroneously arrested in 2005 for failing to pay a traffic fine he had already paid – and whose experience is the center of the case decided by the Court.
John Payton, the sixth Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc., died on March 22, 2012, after a brief illness, at the age of sixty-five. John was one of the most formidable advocates of his generation, and he litigated and argued some of the most important civil rights cases of his time. His legal career spanned private practice, governmental service, and public interest. He led the litigation department of Wilmer, Cutler & Pickering (now Wilmer, Hale), served as corporation counsel for the District of Columbia, and led the NAACP Legal Defense Fund. Among the Supreme Court cases he litigated were NAACP v. Claiborne Hardware, in which he won a decision in the U.S. Supreme Court overturning a monetary judgment against the organization under Mississippi’s secondary boycott law; City of Richmond v. J.A. Croson Co., in which he ably, albeit unsuccessfully, defended a minority contracting municipal ordinance; and perhaps most notably, two cases in which he defended the University of Michigan’s pursuit of diversity in admissions, Gratz v. Bollinger, and Grutter v. Bollinger. Most recently, in 2010, John successfully argued and won Williams v. City of Chicago,an employment discrimination case against the city’s fire department. Under his leadership LDF won five Supreme Court cases, including a successful defense of the recently extended Voting Rights Act.