Race Discrimination and Criminal Records

1. Race Discrimination and Criminal Records Sharon M. Dietrich Managing Attorney Community Legal Services, Inc., Philadelphia, PA EEOC/FEPA Conference June 10, 2010

2. Growth of CLS’s criminal record and employment intake

3. Factual Backgroundon Criminal Records

4. Growing Number of People Have Criminal Records As of 12/09, about 100 million Americans had criminal records, according to USDOJ. Minorities much more likely than Whites to have criminal record. For instance, African Americans incarcerated in prison at 4.5 times the rate of Whites. Hartney and Vuong, Created Equal: Racial and Ethnic Disparities in the US Criminal Justice System

5. Harder than Ever for People with Criminal Records to Find Work • SHRM: 92% of members perform criminal record checks. • Criminal records increasingly accessible – on-line, hundreds of commercial preparers. • Long lists of occupations regulated by law.

6. Social Science Research on “Desistance” • After 6 or 7 years, a person with a criminal record presents little more risk than a non-offender. Megan Kurlychek et al., “Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?” Criminology and Public Policy

7. Title VII/EEOC Guidanceson Criminal Records

8. Title VII Application to Criminal Records by Disparate Impact Claim • Disqualifications based on criminal records has a racially disparate impact. • Therefore, criminal record policies must conform to job relatedness/business necessity analysis.

9. Racially Disparate Impact Presumed “It is the [EEOC’s] position that an employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment (7/29/87) http://www.eeoc.gov/policy/docs/convict2.html

10. Consideration of Conviction Records “The Respondent must show that it considered these three factors to determine whether its decision was justified by business necessity: • The nature and gravity of the offense or offenses; • The time that has passed since the conviction and/or completion of the sentence; and • The nature of the job held or sought.” EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e etseq. (1982). (2/4/87) http://www.eeoc.gov/policy/docs/convict1.html

11. Consideration of Arrest Records • Fourth factor: “Even where the conduct alleged in the arrest record is related to the job at issue, the employer must evaluate whether the arrest record reflects the applicant’s conduct. “ • “Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny.” Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982) http://www.eeoc.gov/policy/docs/arrest_records.html

12. El and its Aftermath • El v. Southeastern Pa. Transportation Authority, 479 F.3d 232 (3d. Cir. 2007): Title VII requires that criminal record policies “accurately distinguish between applicants that pose an unacceptable level of risk and those that do not.” • EEOC’s criminal record policies undergoing revision, in part in response to 3d Circuit’s giving it little deference.

13. Current Notable Litigation • EEOC litigation in Baltimore and Detroit. • National class action against Census Bureau.

14. Results at EEOC District Office Level • Many “cause findings” in Philadelphia District Office. • Good results because of filing of charges, findings.