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 Guidance documented the compelling factual basis for the EEOC’s policy condemning the indiscriminate use of arrest and conviction records as a screening device because the practice has a marked adverse effect on minority workers. The Guidance responded to a decision of the Third Circuit in 2007, El v. SEPTA, which declined to give substantial weight to Guidance then in effect because of the limited statistical and legal analysis contained in the Guidance at that time.
The Guidance reaffirmed that the use of criminal history records is an employment practice that, based on national statistics, will be presumed in enforcement investigations to have an adverse impact. Workers with a criminal history should not be excluded from the employer’s consideration unless the particular criminal record is job-related and business necessity justifies exclusion (i.e., there are no less restrictive means of protecting the employer’s interests). Unless there was a conviction or the employer has reliable information about the conduct underlying an arrest, the record cannot be considered. Lifetime bans for convicted offenders are not justified.
The Guidance endorsed, for the first time, a method to show a criminal history is job-related. The method is essentially the process that has been in use by employers who purport to comply with Title VII in screening the criminal history of applicants: creating a “targeted screen” (often called a “matrix” in Human Resources) by analyzing the actual circumstances of a job, relating those requirements to categories of criminal conduct and establishing a duration since the conviction or completion of sentence. This is to identify applicants who have committed acts that could harm the employer’s interest, so recently that there is a risk they will repeat those acts. Then the employer must determine individually, for each applicant within the targeted screen, whether his behavior and job performance (particularly after the offense) show that he is not now in fact a risk to the employer.
Changes in employer practices
The issuance of the Guidance was extremely welcome and important in bringing the issue into the national spotlight, but a new policy document will not necessarily motivate large changes in employer behavior. Since the Commission acted there has been little complaint from employers. The Guidance primarily prescribes that employers should do what employers who purport to be compliant with Title VII claim to be doing.
Of course, ex-offenders repeatedly find that employers are not doing what the Guidance prescribes. Although EEOC policy adopted when Clarence Thomas was Chair in 1987 required the employer to provide applicant data showing that its practices have no adverse impact, rejected applicants often find that the EEOC dismisses Title VII complaints without any such showing by the employer.
To change employer behavior, the EEOC should follow the issuance of the Guidance by providing effective training on how to investigate disparate impact charges and by using the presumption of adverse impact effectively in its enforcement program. Employers will take heed if the EEOC makes consistent rulings that an employer’s policies have an adverse impact on minority applicants as to any employer who fails to provide statistics for its applicants (“applicant flow data”) that affirmatively contradicts the national statistics.
The Commission deserves strong praise for issuing the new Guidance. But it has taken only the first step, in more than 20 years, on a road that will be a long and hard one. If the EEOC can put enforcement teeth into the framework outlined in the Guidance, employer practices will change from claiming to be compliant to actual compliance.