PRESENT:

JACQUELINE A. BERRIEN, Chair
STUART J. ISHIMARU, Commissioner
CONSTANCE S. BARKER, Commissioner
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner

ALSO PRESENT:

P. DAVID LOPEZ, General Counsel
CAROL MIASKOFF, Acting Associate, Legal Counsel
BERNADETTE B. WILSON, Program Analyst

This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.

TABLE OF CONTENTS

AGENDA ITEM PAGE

1. Announcement of Notation Votes
2. Arrest and Conviction Records as a Hiring Barrier

   Panel 1: Best Practices for Employers

   • Michael Curtin, CEO, D.C. Central Kitchen
   • Victoria Kane, Area Director, Labor Relations & Integration, Portfolio Hotels & Resorts
   • Robert Shriver, Senior Policy Counsel, U.S. Office of Personnel Management

   Panel 2: An Overview of Local, State and Federal Programs and Policies

   • Amy Solomon, Senior Advisor to the Assistant Attorney General, Office of Justice Programs, U.S. Department of Justice
   • Professor Stephen Saltzburg, Criminal Justice Section Delegate and Pat Chair, American Bar Association
   • Cornell Brooks, Executive Director, New Jersey Institute for Social Justice

   Panel 3: Legal Standards Governing Employers' Consideration of Criminal Arrest and Conviction Records

   • Juan Cartagena, President and General Counsel, Latino Justice
   • Barry Hartstein, Shareholder, Littler Mendelson, P.C.
   • Adam Klein, Partner, Outten & Golden LLP

P R O C E E D I N G S

9:38 a.m.

CHAIR BERRIEN: Good morning everyone. We'll now call the meeting of the Equal Employment Opportunity Commission to order. I want to thank everyone in attendance, both live in our Headquarters, but also those who are streaming online and are able to participate in the meeting with the benefit of technology. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.

At this time I'm going to ask Bernadette Wilson from the Executive Secretariat to make administrative announcements. Ms. Wilson?

MS. WILSON: Good morning. Good morning again. Is there anyone in need of a sign language interpreter?

(No audible response.)

MS. WILSON: Good morning Madam Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.

During the period June 21, 2011 through July 25, 2011, the Commission acted on five (5) items by notation vote:

Approved Amicus Participation in three (3) cases and;

Approved resolutions honoring Susan Farris and Susan Taylor on their retirement.

Madam Chair?

CHAIR BERRIEN: Thank you Ms. Wilson. And I will note at the threshold, and I'm sure that my colleagues might also want to comment briefly on this, that this is the 21st anniversary I believe of the signing of the Americans With Disabilities Act. There were people who were going to join us today or would have liked to have joined us today and were unable to, due to a conflict with an event related to that, but certainly the significance of that day is great to all of the Members of the Commission and we want to acknowledge the work of many who have opened doors to employment for people with disabilities.

Let me take care of a quick administrative point, an important one because of the ambitious agenda that we have today. We have a tremendous panel of witnesses from both across the region and across the country. We want to be sure that there is ample opportunity to hear from all of them. So I will both remind the witnesses and remind my colleagues and remind myself of the importance of timing today. We do have a set of timing lights that are right here in the center of the podium and it follows the traffic signal rules. Red means stop, yellow is your warning that time is running out, and green is, you're fine. And that applies for us as well. So we will begin today with opening statements and I will start, followed by my fellow Commissioners.

Today's meeting was organized and is being conducted to consider employers' consideration of arrest and conviction records in the hiring, retention and promotion of employees. This meeting is the second full meeting the Commission has held on this issue in recent years. The last one was convened in 2008 under the leadership of Chair Naomi Earp.

The Commission's 2008 meeting, like today's meeting, is linked to the Commission's longstanding concern that employers use information about the arrest or criminal conviction records of job applicants or employees in a manner that satisfies the requirements of Title VII of the Civil Rights Act of 1964. We are not writing on a blank slate. The Commission has spoken on this issue several times. In 1987, the Commission issued a policy statement on the issue of conviction records under Title VII and a statement on the use of statistics and charges involving the exclusion of individuals with conviction records from employment. And in 1990, the Commission issued guidance on the consideration of arrest records in employment decisions under Title VII. All of these materials can be found on our Web site.

We also discussed the use of arrest and conviction records in the Compliance Manual adopted by the Commission, and in particular, in the section on race and color discrimination.

In short, as we meet today, we have the benefit of a substantial history and record of recognizing the potential pitfalls with employers' use of arrest and conviction records to inform the selection, retention and promotion of employees, and we have long provided guidance to employers to assist them in complying with the law. Our guidance has recognized that employers may legitimately consider arrest and conviction records under certain circumstances, and significantly, the guidance has taken an approach to the compliance with Title VII that recognizes the need to both balance the interest of employers and the general public with access to the work force.

Today we are joined in this meeting because we believe that there are perspectives that will help to inform the Commission as it considers the possible amendment to, or revision of that guidance. We recognize the importance to individuals of dismantling unnecessary roadblocks to employment. And if and when arrest and conviction records are used inappropriately or unnecessarily, we also recognize that there are societal consequences. The American Bar Association reports that incarceration costs taxpayers $56 billion annually and former offenders who do not obtain employment after release from prison are three times more likely to return to prison.

One of the programs that we will hear about today, D.C. Central Kitchen, dramatically illustrates the fiscal and public safety benefits of programs that help former prisoners obtain job skills and gainful employment. D.C. Central Kitchen graduates have a two percent recidivism rate compared to a 73 percent rate for the District of Columbia overall.

Sixty-five million adults in the United States have criminal records and one out of every 100 adults are incarcerated. Each year more than 700,000 people are released from prison. After release, the vast majority of these people will return to communities they came from; and it is in the interest not only of those communities, but public safety in general, to help them reconnect with society, find gainful employment, stay out of trouble and avoid returning to jail to the extent we can do that consistently with any public safety concerns.

When reentry fails, public safety, our economy, the future of families and the community as a whole are placed at risk. President George W. Bush acknowledged this when he signed the Second Chance Act of 2007 and stated, and I quote, "The country was built on the belief that each human being has limitless potential and worth. Everybody matters. The work of redemption reflects our values. It also reflects our national interest. The high recidivism rate places a huge financial burden on taxpayers, it deprives our labor force of productive workers and it deprives families of their daughters and sons, and husbands and wives, and moms and dads. Our government has a responsibility to help prisoners to return as contributing members of their community."

Today, we will have an opportunity to hear from a wide range of witnesses who will represent many important interests for the Commission to consider in relation to our guidance on arrest and conviction records and their use in employment decisions. In our first panel, we will hear from individuals who represent employers who have been able to successfully integrate people who are returning from prison into their work forces, and who will address forthrightly some of the challenges that have been presented by that effort, but also the tremendous opportunities that have been gained by striking the appropriate balance. In our second panel we will hear from people with expertise on state, local and federal policy issues that impact the employment of people with arrest or conviction records. And finally, in our third panel today we will hear from experts who will address the legal standards that apply to the employment of people with records of criminal arrest or conviction.

We have an ambitious agenda today. I want to thank in advance all of the witnesses who have come to join us today and who are going to play such an important role in ensuring that the Commission has guidance that is current, that is accurate in its application of the relevant laws and that reflects the range of concerns that come to bear in addressing the issue of employers' use and consideration of criminal arrest and conviction records.

I want to thank all of my colleagues on the Commission in advance for their contributions to today's meeting and I want to thank my staff and particularly, Awo Sarpong Ansu, for her work in organizing the meeting.

Thank you very much to all of the witnesses. And I will now invite my fellow Commissioners to make brief opening statements beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. I want to thank you too for holding this hearing today.

As you noted, 21 years ago many of us were on the South Lawn of the White House; some of us were outside the White House, but that's another story, celebrating the enactment of the Americans With Disabilities Act. And this recent weather here in Washington reminded me of that day back in 2000.

COMMISSIONER FELDBLUM: 1990.

COMMISSIONER ISHIMARU: 1990, 1990, missing 10 years. How historic that event was and the promise back then, we're still trying to carry out today to provide civil rights protection for people with disabilities. Certainly the ADA Amendments Act of 2008 is yet another step to provide those sorts of basic protections, and I hope that, along with our regulations, will make that come about. But again, 21 years is a long time and it's been quite a ride through that.

And going on 21.plus years, I want to note the presence of my old friends, Charlie and Pauline Sullivan, in the audience who have been doing work with formerly incarcerated people for many, many years, far longer than 21 years. And I first met them on Capitol Hill back when I started as a staffer many years ago. And they've done yeoman's work in making sure that people have a chance after they've served their time to live full and productive lives.

I'm glad we're doing the hearing today. Arrest and incarceration rates continue to be particularly high for Blacks and Hispanics. We've heard testimony at earlier Commission meetings that African.Americans and Hispanics are arrested at rates that are two to three times their numbers in the general population. At a time of record unemployment, the EEOC must ensure that discriminatory barriers to hiring that arise from the consideration of criminal history are eliminated.

These issues clearly are not partisan in nature, but should concern all of us, namely, how can we get people back into society after they've been excluded from it because of their interaction with the criminal justice system.

The role of the EEOC in this area stretches back many years. It was during the administration of Clarence Thomas, during the Reagan Administration, that the Commission first came out with guidance on this, and it was with Chairman Evan Kemp, during the first Bush Administration when further guidance came out. This I think sends a signal that again this is a bipartisan issue, that the question of how do we deal with people coming back into society after serving time in prison, is an issue that concerns us all.

I am glad we're doing the hearing today, but it's my belief that we need to update and fully develop our policy position now so we can get full benefit of this in these difficult times. The 3rd Circuit decision in the El case, and I know panelists will be talking about later, is further indication that it's important for us to update our guidance.

As the Chair noted, we held hearings on this back in 2008 and we touched on this in an earlier meeting in 2007. I would encourage those who are interested in those meetings to look at the transcripts on the Web site. I think they too help us lay a foundation for the work we need to do in this area. And with that, I yield back.

CHAIR BERRIEN: Thank you Commissioner.

Commissioner Barker?

COMMISSIONER BARKER: Thank you and appreciation to the Chair and her staff for calling together this meeting today.

You know, I think it might be appropriate before we start with .. into the business of this meeting, if we just pause for a second to reflect on what happened in Norway. And I just have to say, I drove past the Norwegian embassy yesterday and saw that a number of people had put out flowers, which I thought was .. I was really proud of Americans for doing that, but I think that it's situations like this that are very sober reminders to all of us in this room who are involved in the business of civil rights. What a very sobering business this is, and I think it's a reminder to all of us as Commissioners of the heaviness of our responsibilities and the real life conflicts and difficulties that arrive when you deal with people of different nationalities, different beliefs; and it's something that none of us knows the answer to and we all just have to struggle to pool our minds and our resources to try to arrive at what we think is the best solution on a given day for a given situation.

That aside, I'm very respectful and appreciative of the fact that the Chair has pulled this meeting together today because it deals with a very serious and very difficult subject. And we will hear from people who have very strong views on both sides and expressing very strong concerns on both sides. And as the Chair appropriately put it, it is all a balancing situation. We are very much a nation of innocent until proven guilty. We are very much a nation of second chances. And at the same time, none of us can ignore the fact that that has to be weighed, especially in circumstances against protection of the innocent and the vulnerable, particularly children, women in certain circumstances. So this is all a very difficult weighing situation that we're dealing with today and we have the benefit of people who are experts in the area who will lend us their expertise, so my appreciation in advance to all of you. And also my apologies because I'm going to have to leave a little bit early to take care of another obligation, but thank you very much.

CHAIR BERRIEN: Thank you Commissioner.

Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you so much. Thank you Madam Chair for organizing this meeting, thank you to Awo. I know how hard it is to put these meetings together and having a special assistant who's working it, is excellent.

This is a complicated issue, bottom line, this is a complicated issue. If there's anything we're going to get from our witnesses today; it's going to be, I think, a sense of the difficulty in both ensuring that people get second chances, and in ensuring that employers feel confident about the people that they're hiring.

Now here's the thing: We're not a legislature, so we're not looking to see whether there should be a new law that prohibits use of criminal convictions or types of criminal convictions. I think some of the testimony we got today of what different states have been doing, gives a good example of how different legislatures have been trying to deal with that.

What we are, is an Agency that is obligated to enforce the Civil Rights Acts that prohibit discrimination based on race and ethnicity. So if there is a disparate impact by certain neutral policies; that's our obligation to see if there is that disparate impact. And if there is, what is it that we want to say as an Agency in terms of how to ensure that the impact is consistent with law, job.related or consistent with business necessity, and if it's not, to give some guidance about when it's not. That's our job. So it's still complicated, but it's complicated within a clear area of jurisdiction.

So with that I just want to say two other things: Number one, I want to welcome Abdul and Miriam Ibrahim who are in the audience today with me. One of them is entering his sophomore year of high school, and Miriam is entering sixth grade. They are hanging around with me today to get a sense of, you know, Government in action. And I told them that they'd be hearing about some complicated issues.

But the second thing that I want to say is that we all do come to this with wholeness of our backgrounds, right? We have different sort of senses. I grew up in a very poor neighborhood, about 90 percent Hispanic, high crime area. I think I was ... most noticed that when I went out on one of my first dates when I was 18 and the guy I was .. we were on the subway and he said, "Okay, so what stop do you get off?" And I said, "181st Street and then I'm at 183rd between Amsterdam and Audubon," and his eyes widened and he was like, "Is it okay if I don't walk you home? I'm really scared of that neighborhood." And I'm like, "Okay." Well I didn't go out with him again. But you know, I had gotten used to being in that neighborhood, right? But let me tell you, for people in that neighborhood, the big shots were the ones who were running drugs. You know, those are the ones who had money. You know, to move out of that neighborhood, to see something different, takes a different level of energy than if you're growing up in, you know, Tacoma Park, Maryland, which is, you know, where I lived until a bit ago. So I feel very committed to the idea of second chances. I feel very committed to the idea of ensuring that employers can feel comfortable with hiring good workers. I don't think those two are inconsistent, but I do think we have a responsibility to make sure that as we enforce the civil rights laws; that we're enforcing them to the level at which they are appropriately applied.

Thank you. I look forward to the witnesses.

CHAIR BERRIEN: Thank you Commissioner.

Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone. Good morning especially to our witnesses and thank you for all of the work that all of you have put into your testimony today. I know these are not easy things and especially when people often get noticed, particularly if you're, you know, practicing law and you have other clients and things you have to take care of, so to put things together like this for us is a great help to us. I also want to thank the Chair for putting this meeting together and also her staff for their work on this.

On the anniversary of the ADA, as Commissioner Ishimaru mentioned, I also want to commend the work of so many people in this Agency who have done yeoman's work on this law over the last 20 years. And I also want to say that it's quite an honor to serve on this Commission with people like Commissioner Ishimaru and Commissioner Feldblum who have such a long history with the ADA. So thank you for that.

I will just second the comments of all of my colleagues in terms of everything that's been said so far on this issue. I think as both Commissioner Barker said and Commissioner Feldblum, this is an enormously complicated issue, incredibly weighty. Our obligations are incredibly weighty on this. And the word that I always use when I go out and talk on this is, I just feel like this issue is so fraught with just so many implications and so many difficult issues for all of us to deal with.

And with that, I would just add that to the extent that it has been suggested in media reports that the Commission may be revising its guidance on this issue; that I would stand ready to work with my colleagues in a, I hope, thoughtful and transparent and bipartisan fashion to work on that guidance. Thank you Madam Chair.

CHAIR BERRIEN: Thank you. Thank you all Commissioners for your opening remarks. And we'll begin with the first panel. I'll invite them up. Robert Shriver, Victoria Kane, and Michael Curtin. And as you all are getting seated, let me just remind you .. well, first of all, thank you again. I know that at least one of you traveled a great distance to be with us. The other have traveled in rush hour in Washington, which can also be a great distance, so we thank you.

Please remember the timing lights. The yellow light will appear when you have one minute left. You have a total of 10 minutes to make your statements, but remember that your written statement will be a part of our record in full, so please do not feel that you have to race through that to be sure that it will be included in its entirety in our record.

Very briefly, our panel today: Michael Curtin, the CEO of D.C. Central Kitchen, and I have to say I was a bit of a groupie today, because he was featured in a profile in the Washington Post last week, the front page of the food section if you did not see it. It's a wonderful profile of the Central Kitchen and its work.

Victoria Kane, Area Director of Labor Relations and Integration at Portfolio Hotels and Resorts, which manages hotels in California, Ohio, Illinois, and South Carolina.

And finally, Robert Shriver, Senior Policy Counsel for the United States Office of Personnel Management, will be able to provide perspectives on the federal government as an employer and its use and consideration of arrest and conviction records.

So I want to thank you all for helping to shed light today on the practical considerations and best practices of employers. We'll begin with Mr. Curtin.

MR. CURTIN: Thank you Madam Chair, Commissioners. My name is Mike Curtin, Jr. It's very important in this city for me to say the junior part. I am the CEO of D.C. Central Kitchen and I'd like to thank the EEOC for inviting the Kitchen to be part of this important conversation. Empowering people to overcome challenges, including incarceration, is at the heart of what D.C. Central Kitchen does.

On a personal note, I have to say that I appreciate the reminder of the ADA anniversary. My little brother, who tragically died last year, had dedicated his life to working with folks who benefit and continue to benefit from that Act. He was the director of the Target Center at the USDA which develops and dispatches accessible technology so people in the federal work force can better perform and have the opportunities that so many of us take for granted. So that's a very comforting fact to know that that spirit is with me. And I also couldn't resist, Chair Feldblum, saying that I think it's a great thing that your guests are with you here to see Government in action; the two word version of that, as opposed to a few blocks up the road, where it might be the inaction version of what's going on here. So I'm glad that they're here today.

The mission of D.C. Central Kitchen is to use food as a tool to strengthen bodies, empower minds and build communities. The Kitchen was founded 22 years ago on a very simple principle: Waste is wrong. That waste could be food, kitchens that aren't being used or minds that have been marginalized or largely discarded by society.

The Kitchen was founded .. basically came out of a volunteer experience that Robert Egger, our president, who still works with us when he's in town .. when he went out on a volunteer experience and saw what he experienced as a fairly inefficient system of perpetuating homelessness and hunger and poverty. Handing out sandwiches to men and women on the street, while necessary, was really looked on as a way to end hunger. We have to realize that we will never ever feed our way out of hunger. And what Robert saw that evening was a huge number of men and women that he would have walked by on the street and not thought that they were hungry. And he asked himself, how can these people, these men and women that aren't the high school images we have of homeless people, in this rich city, in this rich country, be waiting in line on this cold rainy night for a sandwich and a cup of coffee?

So Robert, having been in the hospitality business, devised this system where we would gather wasted food, thousands and thousands of pounds; still today in this country over 25 percent of the food we produce ends up in the garbage, and provide this food to agencies that are helping people get out of this line, whether they're reentry programs, job training programs, after school programs for kids. And while we're doing that, train men and women who are in that line to get out of that line and break the cycle of homelessness, hunger and poverty on their own.

And the resistance he encountered was mostly people saying, "Train homeless people? Train addicts? Train felons? You can't do that, they don't want a job, they don't want to work, they just want a free meal." And Robert really felt that as a society, as a group of do.gooders, as churches, non.profits, if we were creating this social paradigm, this structure of social slavery, that certainly those were the results we were going to get.

So Robert conceived of the D.C. Central Kitchen, hoping someone else would run it for him, that didn't work. So what he decided to do was team up with, interestingly enough, George H.W. Bush, to get a significant amount of recognition for introducing this program. And all of the food, the leftover food from the first Bush Administration's inaugural events were denoted to D.C. Central Kitchen. And that's how things started 22 years ago.

I came to the Kitchen in 2004 after about 15 years in the hospitality business and finally opening my own restaurant in 1998 that I had for almost five years in Falls Church, Virginia, the Broad Street Grill. I say that time was my first experience in the non.profit sector, owning my own restaurant. But the good part that came out of that was getting to know the Kitchen. So I volunteered there. I did fund raisers for the Kitchen at my restaurant and was part of the work that they were doing. I was very drawn to the practicality of the programs they were running.

So when I speak today, I speak not only as someone who works with felons, ex.offenders, recovering addicts in training programs to try to get them employed; but I speak as a now 20.year plus employer in the hospitality business in Washington D.C. or in the Greater Metro Area, and someone that has hired, trained and unfortunately fired many, many people; not the firing part, but the hiring and training part, in this city. So I'm coming at this from many, many angles. And I think it's important to recognize that I'm not here selling D.C. Central Kitchen, but speaking to the validity of programs like this and having seen for 20 years the opportunity and the results first hand as a trainer, as an employer.

Everyday D.C. Central Kitchen produces over 6,000 meals, now that we deliver to shelters, transitional homes, halfway houses, senior centers, after school programs for kids and a host of other social service agencies. In addition to that, and probably far more central to our mission, is our culinary job training program. Again, we're never going to feed our way out of hunger. It's only giving people the opportunity to break that cycle themselves is when we are going to be successful.

Now our program has gone through many iterations over the two decades we've been doing it. And we've been thankful and fortunate over the years to have the incredible support of the Washington Hospitality Community, including many of its celebrity chefs: José Andres; Todd Gray, who has a restaurant right around the corner; Scott Drewno; Carla Hall, for those foodies of you who have seen Top Chef; Bryan Voltaggio, Mike Isabella, people who have invested in the Kitchen and said we will take a chance with you. We will walk down this path together because we know how serious you are and the effort that you put into the training.

And half of that training that we do has nothing to do with cooking, with sauces, with knife skills, with fabricating the chicken or deboning a fish. It is the skills that we call empowerment skills, the anger management and conflict resolution, time management, basic financial literacy, basic computer literacy that will allow the students perhaps not to get the job, but will facilitate them keeping the job. And that's what we're interested in. We're not interested in just putting someone in a place of work and forgetting about it. We need to put them in a position where they can support themselves and support their families, live a life of self.sufficiency and contribute to our community.

Last year alone we graduated 91 students, seventy.one of those were ex.offenders. The Chair mentioned some figures early on and the figures I have may be a little off in terms of numbers, but roughly it costs about $50,000 or so, what I've been told, to keep someone incarcerated in the District of Columbia. And as the Chair pointed out, 73 percent, 73 percent of them will re.offend and go back to jail within a year, mostly because they can't find a job. The national average is about 65 percent. So once again, the District is leading the nation in a very unprogressive way in this circumstance. And as the Chair mentioned, our recidivism rate for graduates over the last three years is right around two percent. So if you do some simple math, you're talking at least $2 million, or over $2 million that this program alone .. this teeny little program in the basement of a shabby shelter up on Capitol Hill, is saving the city $2.4 million. In addition, those group of graduates are now working. They're earning collectively $2 million in wages, contributing over $100,000 in payroll taxes and all the spinoff income and revenue that comes with that. They're out of supportive housing. They're paying rent. They're buying food. They're buying clothes. They're riding the Metro. They're buying clothes for their kids. They're making sure their kids are going to school.

So the next step that the Kitchen is very involved in, and I think this sort of plays off of an old proverb that people use to describe the Kitchen: Give someone a fish, feed them for a day; teach them to fish, feed them for a lifetime. But an old Jesuit priest I knew was famous for saying, "That's great, but what if all the fishermen are unemployed?" And we can't at that point just step back and say, hey, we've done our bit. So we very actively invested in social enterprise ventures; catering, dining services in schools, and over the last four years have generated over $13 million in revenue, largely employing felons. Right now our total staff is about 115 people. Fifty.one percent of those are graduates, thirty.eight percent of those are felons. D.C. Central Kitchen pays the District's .. starts everyone at the District's living wage. We offer everyone .. oh, my goodness. That's 10 minutes? All right. Okay.

Let me close by telling a very quick story, Chair. One of our graduates, Dwayne Errington, when he was 10 years old .. he grew up in Southeast Washington. When he was 10 years old, he said to himself, as most of his neighbors and his friends said, if – if, I live to be 21, I will be dead or I will be in prison. And that was the accepted reality of his youth. At 11 he was arrested for the first time for stealing food from a corner store to feed his brothers. His mother was a junkie. She was off on a bender, as she often was. His dad was a dealer, he was in prison. That started a predictable cycle of violence and gangs and drugs that landed .. so Dwayne spent the better part of the next 23 years of his life in jail. He went to prison. The last time was supposed to be a 35.year term. He got out after 13. And while he was there he said I cannot do this any longer. He got his GED, he got a welding certificate, he got a drywall certificate, doing everything that we as society tell him to do. When he got out he had nothing but rejections. Finally he came to the Kitchen. He made it through. We've hired him. He's a supervisor now. He has a daughter. And the beautiful part of this generational systemic change that we're after and programs like this around the country are after is that his daughter will never when she is 10 years old, say to herself or be with friends that will say to themselves that when I am .. if I ever make it to 21, I will be in prison. And so what we're after is not the right thing or the good thing. We're after the smart thing. This economically makes sense for our community and our nation. Thank you very much and I'm very apologetic, Madam Chair, for running over.

CHAIR BERRIEN: Thank you. Well I said I was a groupie, so I gave you some time. But I want to thank you.

Victoria Kane, please, if you can testify?

MS. KANE: Good morning and thank you for inviting me to be here today.

My background is unusual in that I'm a labor and employment attorney who then went in.house because I was working with so many hotels and food service companies and found myself working on implementing best practices. And so when I met these great people at Portfolio Hotels, they kind of saw what I was doing in terms of providing guidance and thought this is great. You can do it for all our hotels and have best practices, because each hotel is like a little mini city and it runs a little bit differently and it's a little hard to garner all that and say, hey, you're going to do it this way. So, as I'm speaking today, keep in mind that we've done this, we've successfully rolled out some best practices in our hotels in L.A., Chicago, South Carolina, and each in its own different way because it's very individualized.

Originally, this topic became very important because we .. I wish I could say it was out of planning and doing the right thing as Mike said, but instead it was a reaction to reality. Reality was: as we took over hotels, there was no background check and testing of the employees that we hired that had already been working at the hotel 10, maybe even 20 years in some cases. And then you come to find out that, hey, they do have a criminal history and they're working just fine and they've been successful for years in this position. How could we as an employer have this very standard policy that if you have a conviction we're not going to hire you? So that in itself was kind of eye opening.

But it's also because in California it's a very slowly recovering unemployment rate and it's alarming when you read statistics such as 33,000 incarcerated individuals will be looking for a job over the next two years as they're released to free up space in our prisons in California. Also there's a climbing number of at.risk youth ages 17 to 25 unemployed. And if they're unemployed and not working, what are they doing? Makes you wonder as an employer and as a community member.

So we looked at our standard, what's standard in the hospitality industry. We want to provide a safe and secure environment for our people, no question, that is our utmost duty, our obligation and we must do that. For our guests, but also our employees, we want to do that. So we had to keep that in mind as we look at our standardized employment policies. You know, again it's very common that they just prohibit any convictions. We're not going to look at that. We're just going to kind of gloss over and go to the next applicant. Background checks are conducted, but sometimes we just say they're conducted and we can't afford them. So then we just say, well, that's why we have it on our job application. So then we know, you know, not to interview that person. I'm not saying that that's what we do. That's not what we do, but that's what some hotels were doing.

There's a perception/assumption that all ex.cons are dangerous, rule breakers, will steal from employers and guests, will fight at work or provoke violence. Again, people are coming with their own baggage and their own hang-up about an experience somebody may have had, not looking at the individual, not looking at those people as where they're coming from and why they were in this situation. We're worried about our image and the public opinion. We certainly don't want, you know, it to be in the paper that, oh, we hire convicts. Who's going to stay at the hotel? So that's another perception is that image.

But there is a way to overcome these hiring challenges and the perceived obstacles, and sometimes it takes time. You take an internal look at the organization to assess what is possible, what is possible today and what is possible in the future? You develop and implement a responsible business plan; that's a plan that I could talk about if I have time later, about a plan that benefits your people, guests and employees, your community, because as a community we want to make sure that everybody has an opportunity to contribute to society, as well as the environment and doing green recycling work. There's new work available because of our green efforts.

We need to get over our fears, our biases and our hiring challenges. Sometimes it's difficult for people who've been doing HR for a long time, but they need to wake up and get out of the box. It's time to really look at what's going on in the world and look at people for what they can contribute, not what's on their résumé or their application.

And we need to work with our potential partners to achieve our hiring objectives, and especially those programs that provide the ongoing support for the riskier hires. I've unfortunately had to be involved with terminating people who are stealing and being terminated from their job of three, five years for stealing $20. Now they're not going to be convicted for that. They're not going to go to jail and prison for that. But to me, that's just as risky a hire as somebody coming out of a work.ready program who's getting other support in terms of life skills, family skills, being responsible, showing up to work for a six week, eight week program at a work.ready center or a non.profit. And meeting those criteria, they have more at risk. They tend to take it more seriously than somebody that goes, oh, so what? I'll just go work somewhere else.

So internally, employers need to look at their organization and really assess what work.ready skills do they need? Do they need to have that hotel experience to work in a job as a steward in our kitchen? That's a fancy word for dishwasher. So, you know, get again outside that box. Do they work? You want people that work well in a structured environment. Most prisons are structured environments. It's interesting the skills they pick up coming out of that if they've held a job or done some sort of function while in prison.

You look at your hiring practices and your employment policies, especially in your handbook. As an attorney I reviewed more .. I stopped counting after I had revised my 200th handbook, had a little party and then stopped counting. A lot of policies look great on paper, but in reality there was always the exception. Well it's so.and.so's, you know, cousin. It's so.and.so's, you know, in.law, and so you make that exception on the inside. So do away with the policy if it's not implemented, but instead put that framework and that guidance in place. Because you do want to look at, you know, in terms of what positions would be a good fit for somebody who's coming out of prison? How long have they been out of prison? What other jobs have they performed prior to .. career.wise?

And you need to look at what resources and support are they getting? That is the key thing to success. Do they have that support group to fall back on, that phone call to a mentor, to a coach, whatever it is? And there are several programs we've been exploring and working with in L.A. that provide that and it really does help them achieve their goals and gives us that sense of comfort that we need.

In terms of other ways to get over the fears and the biases, learn more about federal bonding. I'm embarrassed to say I learned about it at a work force conference and I've been doing this how long? Well over 20 years, and learned about federal bonding benefits. And I thought, Aha! this was the information I needed to get one of our general managers over the hump. Once you heard about that, it was like, oh, okay, I can hire one or two and let's see how it goes. Now he wants to hire everybody through there because he realizes they come with that support system and they're ready to work. They're committed to work.

You talk about the concerns with company leaders and employee committees, and that includes broaching the subject of what if the word gets out? What about the public opinion? What if a guest says this? You need to talk about the what.ifs so you're prepared if it does come up. You need to talk about .. talk with employers who are already working with these programs and the success that they've had. Talk and learn from community leaders, work source centers, job training service providers and mentors. I learned about Homeboy Industries, which is a program similar to Mike's in Los Angeles. And again, they've learned how to become a sustainable business with revenue out of a program that started to get gang members off the street and out of gangs. And I sat through their orientation kind of on the side a couple weeks ago. I would love to say what they said to people. They said if you're not ready to work and show up on time, there's the door. And they are so strict with people. They don't want their reputation on the line if their people don't succeed once they hit the work place. Those are the kind of programs that are out there, our Workforce Investment dollars are sponsoring that employers need to find out about, need to work with and make that connection.

As employers we need to participate in training programs and job fairs and volunteer for mock interview events. If employers aren't ready to jump on board and take the risk, at least they can contribute that way and help these individuals figure out how to interview to get a job.

Employers can invite groups for interactive operational tours, highlighting career paths and employee stories. We'll be doing this in our hotel soon, not only for formerly incarcerated through the Homeboy program, but also veterans. I went to a veteran's job fair and was amazed at how they weren't prepared to translate the skills that they learned into a new career. And so that's another piece that employers can contribute in this area.

So what is a responsible business? It's one that celebrates diversity in serving its people, guests and employees, acknowledging and accepting individual differences instead of everybody who's got a conviction we're going to treat this way, but rather look at the individual and what the individual has to offer. Above all, always care for others and promote a healthy and safe environment.

Secondly, a responsible business demonstrates social and ethical leadership internally as well as within the community. And that's that partnership with work source centers or one.stops, schools, non.profit job training programs, volunteering, donating. A responsible business also contributes to the environment in ways of green efforts to reduce our negative impact on the environment, recycling, reducing waste, buying local, partnering with green vendors and donating used products. I've used up my 10 minutes.

So in closing, I'd just like to say my last words of advice is as employers, we need to stop thinking about the impact on me, as whether I'm the HR person or general manager or manager, and start thinking about giving that second chance to others who are brave enough to tell you about their conviction, tell you about their past and all they want is a job to take care of themselves and their family. Thank you.

CHAIR BERRIEN: Thank you very much Ms. Kane.

And finally on this panel we will hear from Robert Shriver from the Office of Personnel Management who, among other things, I believe will bring greetings from our former colleague, Chris Griffin, who wanted to be here but is a part of an ADA event today.

MR. SHRIVER: Indeed, and good morning Madam Chair, Commissioners of the EEOC. Greetings from former EEOC Commissioner Chris Griffin and current OPM Deputy Director. As you all know, Chris is one of the foremost advocates of equal rights for people with disabilities in the entire Obama administration. She was a real driving force behind the President's Executive Order on increasing employment opportunities for people with disabilities in the federal government, and she is at the ADA event today and sends her regards.

I am pleased to be here to discuss the challenges that people with arrest and conviction records face in trying to secure employment, including employment with the federal government.

OPM has been working on these issues with the Attorney General's Re.Entry Council. And Director Berry was recently extended an invitation to become a member of that Council, so we expect we'll have an even more active role, and I know you'll be hearing from Amy Solomon on the second panel. I told Amy beforehand that it's really great to have that effort underway. It helps us deal with issues in this area in our own building and it helps the federal government coordinating these kinds of policies across the entire administration. Whereas each hotel might be its own little city, I think each federal Agency sometimes is its own little country. So these are the challenges that we grapple with, and I think the Re.Entry Council is really a great vehicle for doing that.

OPM is the Agency that's responsible for establishing human resources policy for the federal government. We touch on arrest and conviction issues primarily in four ways. First, OPM has jurisdiction to establish what we call the suitability policy for employees in the competitive service. Suitability explores whether the individual demonstrates the appropriate character to hold a federal job, both as a general matter and considering agency.specific and any job.specific factors. Our regulations are at Part 731 of Title V of the Code of Federal Regulations. They establish suitability rules including criteria that would be pertinent to arrests and convictions. To be clear, those regulations mostly apply to individuals entering competitive service jobs. In plain language, what that means is that's about 50 to 60 percent of the federal work force. We cover some other categories like career appointments in the Senior Executive Service, but our jurisdiction over the so.called excepted service is much more limited, and agencies have far broader discretion in addressing these kinds of issues with respect to excepted service employees. Our excepted service regulations are at 5 CFR Part 302.

Second, OPM is responsible for issuing what are called supplemental credentialing standards that cover contract employees. This is a responsibility given to us under Homeland Security Presidential Directive 12. Agencies use these standards to decide whether to grant credentials that would allow long.term access to federally.controlled facilities and information systems. So these apply when you have contract employees who are working in the building on a long.term basis, for example.

Third, in addition to establishing suitability policy and credentialing standards, OPM is also the Agency that performs approximately 90 percent of the background investigations that allow agencies to then determine whether applicants for federal jobs meet suitability criteria and whether employees should be granted security clearances when a clearance is required for the job. Our work in this area requires us to gather and evaluate information about people and their character and conduct, including any criminal record.

Fourth, as do most agencies, we have some contracts that we at OPM manage for our own Agency operations and we have to make sure that the contract employees meet the fitness criteria prescribed by each contract, and where a clearance is required that they possess the appropriate clearance to perform national security functions. We've developed our own process for ensuring fairness to the contractor employees modeled after our regular suitability rules that I'll briefly describe if I have some time. I'd like to focus primarily though on our suitability policy and on the investigations. If I have time, I'll circle back to the credentialing standards and our contract policy.

Let me start by mentioning a few key points about our suitability policy. First, with just a few exceptions, criminal convictions do not automatically disqualify an applicant from employment in the competitive civil service. There's some myths out there about that, that you can't have a criminal record and get a government job. That's not true. There are some narrow exceptions that involve certain statutory bars that Congress has enacted with respect to specific kinds of federal jobs. Just to give you a flavor of this; for example, 5 USC 6313 includes a five year bar on federal employment if you're convicted of inciting a riot. 18 USC 2381 bans from future federal employment, anyone who's been convicted of treason. Those are very narrow.

One of the most common statutory debarments that we see come into play is 18 USC 922. It requires an indefinite bar from any position that requires the individual to ship, transport, possess or receive firearms or ammunitions, if, you were convicted of a misdemeanor crime of domestic violence. And I think that you see that kind of policy playing out in the gun laws as well, so that's sort of modeled after that.

And there are also some Agency.specific prohibitions, particularly in the financial area, but again these are picking up on Commissioner Feldblum's point. These are all in the law. These are all statutory bars that Congress over the years has adopted.

Aside from these statutory bars, OPM suitability regulations permit a suitability action, which means a decision not to hire someone or a decision on a reinvestigation to find that someone's no longer suitable, that's a suitability action. Those are only permitted if the action will protect the integrity or promote the efficiency of the civil service, that's our standard. Our regulations and other guidance help agencies make those determinations and there's been some federal case law on these points.

A suitability action is not a simple non.selection. As I mentioned, it can involve removal, cancellation of eligibility or even debarment from federal employment in certain circumstances. So it's a formal procedure that requires notice, an opportunity to respond based on the materials relied upon by the agency taking the action, and a final decision with an appeal to the Merit Systems Protection Board.

Our regulations identify several factors that agencies can take into account when evaluating someone with a criminal past. These factors can be either aggravating or mitigating. 5 CFR Section 731.203(c) mentions things like the seriousness of the offense, the circumstances under which it occurred, how long ago it occurred, and the absence or presence of rehabilitation. We've heard some folks, including the EEOC in the past, believes that that regulation could be clarified, and that's something that we at OPM are looking closely at right now.

The main point I want to leave you with on this with respect to this section of my discussion of this policy, is that agencies should be looking at the individuals. Again, there are, with very few exceptions no across. the.board bars. You've got to look at the specific circumstances of that individual and any aggravating or mitigating circumstances and make a judgment about that particular individual in connection with the job he or she is seeking.

Let me talk a little bit about what our investigators do. As I mentioned, we are responsible for about 90 percent of the investigations the federal government does, and those investigators come across arrest and conviction records. We recognize that reliance on an arrest record by itself can paint an incomplete picture. So we also collect information on the ultimate disposition where it is available in criminal history records, and for public trust and clearance investigations, we review court records, if necessary, to obtain the disposition. In fact, we don't really even say that we rely on arrest records. Rather, OPM collects Criminal History Record Information, CHRI. That's information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correction, supervision, and release. We provide all of that information to the agencies who ultimately are then responsible for adjudicating whether that person is fit for the particular government job.

I see that I'm out of time here, so I'll just wrap up with my conclusion and say that we at OPM are serious about providing fair treatment to individuals with arrest and criminal conviction histories. The rules are set up to provide agencies with a complete picture of the person's background so they can make informed character judgments, trying to do a better job of explaining those rules and that's why a meeting like this and the work that the Attorney General's Re.Entry Council is doing, are so important. So thank you for your time and I look forward to any questions you may have.

CHAIR BERRIEN: Thank you Mr. Shriver.

And we'll turn now to questions and statements, comments from the Commissioners beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. Thank you to the panel, very helpful testimony. I've been a big fan of D.C. Central Kitchen for years and delighted to have you here, Mr. Curtin.

Today on the anniversary of the ADA, it reminds me again, we talk in the disability area of myths, fears and stereotypes that keep people with disability out of jobs. And the same thing happens here I think; myths, fears and stereotypes. And as employers, you know, you're dealing with the same thing. So I have a number of sort of broad questions that I'll throw out to the panel.

One, how do you .. you know, you as employer; and I think for you, Mr. Curtin, both as your non.profit sector running a restaurant in the past as well as at the Kitchen; and you Ms. Kane, actually working with all of your hotels around the country, how do you .. you know, do people with criminal conviction records, arrest records, do they pose any higher risk than other people in your general hiring population? How do you know? Isn't this part of .. as Mr. Shriver points out, this is part of the vetting process that all employers have to do, to figure out, will this person be a good employee for me? And that's not easy. You somehow have to avoid a checklist, right? So if a person has a conviction record, they automatically don't get considered, that's a problem because it may exclude a good worker from you. And from what I've heard through my years here is that employers want to hire and keep good employees, that's really key. And it's this over breadth, I think, that's troubling to me, that people are kicked out from further consideration if they have any sort of record, and that's a problem. So one question is, do people pose any higher risk, and how do you juggle that in your thinking about who to hire and who to keep?

The second question is, can you do the work that you do both in the hotel industry and in the hospitality industry without the use of intermediary organizations? How do you stretch this beyond having specialized programs? And Ms. Kane, you can probably address that best of all. So with that, I throw my musings out to the panel.

MR. CURTIN: Well I could address the first one, Commissioner. And the first thing is there are absolutely no guarantees for anyone. I've fired folks that have come out of culinary school and on the face have perfect résumés for the hospitality business. What I have seen in my 20.plus years or so; and this is in four star hotels, white table cloth restaurants, and my own operation, that I have never worked with a staff that I find more dependable, more trustworthy, more reliable than the staff we have at D.C. Central Kitchen. And I attribute that to the fact that I believe these men and women understand the value of a job far more than another group of people, say, that haven't had barriers put up to them summarily. And I think it's a really, really important point that you're making. And we at the Kitchen and I believe my colleagues around the country would never say that just because someone is an ex.offender they should have an extra advantage or be required to be hired, absolutely not. And there are certainly dozens and dozens of circumstances where people convicted of certain crimes should not be eligible for certain jobs. But that inability to have an opportunity, to have a conversation, to have an interview, is the tragedy that we see.

And I know for a fact, talking to the men and women that work at D.C. Central Kitchen will tell you if they lose this job, they will be in prison or dead. Almost immediately after I started the Kitchen, I had an incident with a guy who had been at the Kitchen for quite some time. Very specific about what I needed him to do. It was over a weekend. I came in just to check and it hadn't happened. I pulled him into the office, little teeny three by five converted mock closet, cinder block office, and I got .. and this is a big guy. And we got into it and I said what are you thinking, you know? And I went sort of nuts on him. And he started .. this huge guy, who I know had been in prison for 20.some years, started tearing up. And I said what .. you know, I had to back off. I said what's going on? He said if I lose this job, I'm dead or I'm back in prison. I can't lose this job. And that just hit me.

Now it also hit me later on when I actually asked him what he was in for and he told me it was armed robbery and manslaughter. And I said, well, note to self, never go after a guy with that again in a small closed office. But Bo's still with us and he's doing great things. But he understands that value of a job and he's going to do absolutely everything he possibly can to keep it. So there's no guarantees, but I have seen this group of people more committed to the work and in a significantly significant work ethic.

CHAIR BERRIEN: I just want to make sure there's ..

COMMISSIONER ISHIMARU: Could you talk about intermediaries and ..

MS. KANE: Sure.

COMMISSIONER ISHIMARU: .. how you use them and how you don't use them?

MS. KANE: Okay.

COMMISSIONER ISHIMARU: How you hire them on your own and how you can spread this around with your colleagues?

MS. KANE: Well just briefly on the do ex. cons .. is it a greater risk to hire them than somebody else, and I think I addressed that earlier with saying I'm firing people for stealing $20. You know, that's not a .. but we're .. also got, you know, more interesting schemes going on than .. you know, than people have been in prison for. So I don't think so, but it's the recidivism rate, it's the media, what you read, and there's that perception. And it's getting people, hiring managers to move beyond that perception. Which goes to .. the second part of the question is, how you use intermediary programs? Or if they're not available and they don't know about them, they kind of happen organically, like at our very small hotel in Ohio. It started with the general manager who was very active in her community and started thinking, I want to give an opportunity to .. she focused on youth to keep them from, you know, going back into a juvenile detention center. She was hiring .. there were some not successful stories, but there were also some successful stories of .. you know, because it was kind of like putting them in a candy store where, you know, ooh, cash.

So the programs out there, you will have a higher success rate working with the programs, there's no doubt, because people who are at risk or who see themselves on that cusp of, you know, if I don't get a job, I'm going to go back to prison. And then they start having the feeling that, well, I'm going to go there anyway, so I might as well .. you know, then they fall back on that if they don't have the support. And then organically if it happens internally it's because of usually a manager who's had a personal experience working with someone who's been .. who came out and, you know, reformed and they just had such a great positive experience that they want to be part of that, or a family member, you know, who has gone to prison and they're like, wow, my, you know, brother can't get a job to save his life and, you know, I want to be able to offer something that helps somebody in his situation. So I've seen that kind of happen, yes.

CHAIR BERRIEN: Thank you. And Commissioner Barker?

COMMISSIONER BARKER: Again thank you to you all. And, Mr. Curtin, I particularly appreciate your comments about youth and your concerns about youth and how, you know, they're .. those youth who are in situations where life seems to offer nothing to them and certainly a shortened lifetime. I did a lot of work with juveniles, both as a prosecutor and a defense attorney, and one of the things that I valued about working in the juvenile system is that instead of it being, you know, an attempt to get convictions, it's an attempt to work with those young people and try to get them out of the grind, out of that routine and couple them with resources that will pull them out of that circle. So certainly what you are doing is incredibly valuable.

Mr. Shriver, I do have some questions for you, because I totally agree with you that the federal government as an employer and as a substantial employer, absolutely has to be the model employer, which is I think one of Chris Griffin's big points too as far as hiring the disability. But to that end I have two questions: And one is, I understood what you were saying about the whole suitability issues and the investigations, but does OPM determine for individual agencies, departments in the federal government which .. in what circumstances those agencies or departments should inquire on applications about criminal convictions, first of all. And, you know, if so, what is that criteria? What are those criteria?

And the second question is, do you have stats that you could give us as far as percent of federal employees that have been hired that have conviction records?

MR. SHRIVER: I don't have any statistics with me. That's certainly something that I could look into when I go back and provide the Commission later, if we do have that information.

COMMISSIONER BARKER: That would be great, if you don't mind.

MR. SHRIVER: So I'm sorry I don't have those now. I believe that the criminal inquiries are asked with respect to every federal position. We have different forms that people fill out depending on the level of the position, whether it's a sensitive position, whether it's a public trust position, whether it's a national security position, and the type of investigation that is done, differs based on which category the job fits into. But I do believe that for every federal job that that question is asked about the criminal background.

COMMISSIONER BARKER: So the federal government has a blanket policy of requesting whether you have a .. is it arrest or conviction, or just conviction for every applicant?

MR. SHRIVER: I believe that we ask people to disclose arrests and convictions, and that's something that comes at the end of the process. It's something that comes only once an individual has gone through the application process and an agency is at the point where it's issuing a tentative offer of employment. That's when we do our investigations. And they complete those forms and then if there's subject matter interviews or further work that's done, that's when that comes into play, yes.

COMMISSIONER BARKER: So there's an initial question for every applicant as to arrest and conviction?

MR. SHRIVER: No, not every applicant. No, the question comes in at the point where there's been a tentative offer of employment.

COMMISSIONER BARKER: I see.

MR. SHRIVER: People are allowed to apply now to jobs with résumés.

COMMISSIONER BARKER: Oh, yes. I see. Without there being a questionnaire that they ..

MR. SHRIVER: I mean, there's a cost to each of these investigations, so we really don't .. our .. it's just a matter of our process that those don't get done until the agency wants to actually hire somebody. And then at that point that's when we do the investigations and people complete their SF.85, SF.85P, the SF.86. Those are the three different forms.

COMMISSIONER BARKER: What criteria does the federal government use to determine when you do an investigation, a criminal background investigation on an applicant for a federal job?

MR. SHRIVER: Again I believe that depends on what category the job fits into. If it's, you know, a sensitive position or a national security position; surely those are done as a matter of course. I believe that even for the lower level positions, that if somebody is going to disclose that there is an arrest or a conviction, that follow.up work would be done in response to that disclosure.

COMMISSIONER BARKER: Just, you know .. and I realize my time is up, but I would just think it might be beneficial for us to look at the criteria the federal government uses when we look at adjusting our guidelines. Thank you Mr. Shriver.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Thank you very much to each of you for your testimony. I want to ask you something about .. where I think things get sort of harder. So I think one of the main things that I took from your comments is the importance of people living a life of self.sufficiency, how important that is; which, as we've heard, is very similar to what people with disabilities feel, and the importance of individualized assessment, and the importance of what in disability we call supported employment, which is making sure that you have some supports on the outside.

So and sort of the easy part: I can see having a rule that says we will never hire anyone who had a criminal conviction, that sort of blanket rule; which neither the federal government has or I suspect many employers do not have that either, that is not okay. Also on the other side, which I consider on the easier side; which I don't think has been out there enough in the employment community, so I'm glad you talked about it, is, why don't you go out and actually have some real experience in hiring people who are ex.cons? You know, but, don't just .. you know, do that with a program that has some of that supports in place and then you'll start seeing some of the experiences that you were talking about, Mike.

Okay. But now I want to talk about in the middle. You're not going to hire everyone off of those programs, right? I'm very grateful that people mentioned that this is the 21st birthday of the ADA. And my colleagues have heard me say often I don't have kids; I have laws. You know, instead of it's a boy, it's a girl; it's a law. And the ADA, when it would have been having its Bar Mitzvah in New York where I grew up, at 13, clearly needed a sibling, and that's where we got the ADA Amendments Act, because kids go to school, laws go to court, judges change them.

Now I have to say I'm not really worried about the ADA drinking now that it's turning 21. And I was saying happy birthday to my nephew yesterday, my sister's middle kid, who's turning 21, turned 21 yesterday, very excited. He can now drink legally. Well yes, that's legal to drink now, but it's not legal to drink and drive. Okay? So if he or someone else gets a DUI, right, that's a crime, can be convicted of it. So what do you think, you know, for the companies that are now saying, we just want to find out about whether you had a criminal conviction, and then someone says, "I had a DUI," "I, you know, was in for stealing," or whatever .. so what would be your .. with the two of you would be .. what would you do as employers in that? And then, Rob, sort of .. I understand it's the agency's decision at a certain point, but, you know, how would you deal with that as an employer? And all three of you are. You can just go down the line, Mike.

MR. CURTIN: Well I would say again it's a fair question and certainly employers have the right and should ask. Unfortunately, I don't share your optimism that there is not this blanket rule amongst many employers that they just plain won't hire anyone who has ..

COMMISSIONER FELDBLUM: Oh, no, no, no, no. We know people have those blanket rules, and we often sue them when they do. So what I'm saying .. I'm putting aside those .. I understand companies that have completely blanket rules, but I'm talking about blanket of any criminal conviction. I mean, I think there are some other sort of more targeted rules. But I'm actually just wanting to know, assuming that someone doesn't have a blanket rule, they're just like the federal government, they just ask, I want to have a best practices scenario here of, you ask after you've given that tentative offer let's say. And then I'm just curious about where you would go from there. And just take a DUI and a case of stealing, just those two. And then how would you process that?

MR. CURTIN: Well, one of the things that I think employers need to ask themselves is, when you're asking a question what are you going to do with that answer? What does that mean? What are you scared of, I think is the way to look at it. We see this in our work with the schools. I understand that we need to protect our children, particularly from pedophiles and sex offenders, but if we're asking about criminal convictions, if someone had a DWI or DUI 10 years ago, should that eliminate that person from teaching, helping our children, creating a better future? So I guess .. and I understand this answer's probably not very satisfying, but I don't think that people are honest enough about the answers they're looking for. I find that the questions are being asked for exclusionary purposes, and this is what we need to get by. If someone really says, well, it doesn't matter if you're waiting tables if you've had a conviction for a DWI or, you know, a drug offense five or 10 years ago, then why ask? It's their right. And I believe looking at the broader scale of say my business, if I had a bartender who was handling credit cards, I certainly wouldn't want someone who had been convicted of stealing credit cards or cutting checks or doing credit card fraud, yet I've had college.educated bartenders with no criminal history who have devised incredibly complicated and sophisticated systems to steal. So again, it goes back to there's no excuses. And really the question is what are we afraid of and what are we going to do with the answer when we get it?

COMMISSIONER FELDBLUM: I'm sorry, because my time is up, but let's .. can I just get a quick response from each of you?

MS. KANE: What we do when we come across somebody who admits to having a DUI, we do look at the time frame, we look at the position that they're going into. You certainly don't want to put some .. and then you also .. you're scared as an employer to dig too deeply because you don't want to talk about alcoholism, you don't want to start talking about recovery and treatment. You want to find out and give that person the benefit of the doubt that this was a one.off or this was a bad judgment situation. But you don't want to put them in a position where are you working alone as a bartender and you're closing at night, so you have, you know, again free reign to alcohol and then you're going to get in your car and go drive drunk. We feel responsible. In fact we have a policy that if an employee is found too drunk to drive or, you know, or has the misfortune of drinking at work, we actually put them in the hotel. We don't put them in a car. Or we call a family member to come pick them up. And unfortunately that's happened a lot in the last couple years; not a lot, lot, but it's just come up and it's because of economic fatigue, we're seeing people resorting to that. So we do look at that, but it doesn't prohibit them from employment because I can name probably five highly.paid directors at our organization that have DUIs. So again, how can you exclude somebody who might be a future manager or director because of a, you know, DUI conviction?

COMMISSIONER FELDBLUM: Why don't we do it .. my time is up, so you'll just respond later. So, yes.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Mr. Curtin and Ms. Kane, can you tell us a little bit about how individuals come to your, you know, organizations for employment? Is there a pipeline through third party organizations, or how does all that work?

MR. CURTIN: Well we recruit, which is sort of an odd term, but recruit through the agencies that we serve. We work with halfway houses that we know do a good job. We go to the D.C. jail three times a year to the pre.release population to talk to the men and women there about the program. We do a video conference with a federal penitentiary down in North Carolina that houses a lot of D.C. inmates. So we're looking again for people who are ready to change their lives, who could admit that to themselves, and then who we know by training and helping find employment we can have a significant economic impact, immediate economic impact on the community.

MS. KANE: Our pipeline is through just regular channels of posting ads, our online recruitment through our career web site and working with the one.stop or work source centers in the L.A. area, and other areas.

COMMISSIONER LIPNIC: And any state agencies as well, or? ..

MS. KANE: It depends on the location and the hiring manager, the HR manager and who they're working with, but generally they would reach out to the agencies. So I think there's again that fear that they're just going to get everybody and not just people who want to work at the hotel, they're just going to get slammed with every application or résumé, so they try to be more targeted.

COMMISSIONER LIPNIC: Thank you for that. And, Mr. Shriver, I had a couple questions for you to follow up on some of the things that Commissioner Barker was asking. So just so I'm clear, does OPM keep track of and actually have statistics about how federal agencies, how many federal agencies do not then offer employment to someone who has a criminal conviction and/or arrest? And it's not entirely clear to me whether arrest is relevant or not.

MR. SHRIVER: I'm not sure what statistics we have because we turn over our investigative files to the agencies who then do their own adjudications, and I'm not aware that they report back the results of those to us. I'd have to check that.

COMMISSIONER LIPNIC: Okay, and then when the agencies do their adjudications, I think it would .. well we'd certainly be interested in what those numbers look like, if that's possible to get that. And then, is everyone who is judged not suitable, given appeal rights to the MSPB regardless of what the position is?

MR. SHRIVER: If there's ..

COMMISSIONER LIPNIC: If it's not a supervisory or management position, or someone who would normally have appeal rights to the ..

MR. SHRIVER: If it's a suitability determination, then yes, there's a process to go to the MSPB for those suitability appeals.

COMMISSIONER LIPNIC: Okay. And in the investigation, what exactly does that entail? Is it just, you know, running a consumer background report like with the Federal Trade Commission? Is it a full.blown .. you know, an OPM investigator goes out and talks to individuals?

MR. SHRIVER: There's no one answer because again it depends on the level of the federal job, but yes, you know, a common feature.

COMMISSIONER LIPNIC: But let's say it's something that doesn't involve a security clearance.

MR. SHRIVER: Right.

COMMISSIONER LIPNIC: Not a sensitive position. You know, if there is such a thing as your average federal government position, what would that background investigation as to criminal convictions or arrests entail?

MR. SHRIVER: I think there's questions on the forms. There's a check of the relevant databases. There's typically an interview with the individual. There could be interviews with the individual's neighbors or other references. And then our investigators, if they got any additional information, had leads, they would track those down as well. They would take the information, for example, that they may get from the FBI database and if there were incomplete records there, they would track it down to determine whether there was a disposition. So that's the kind of thing that's fairly typical in the investigations that we do.

COMMISSIONER LIPNIC: And that's for every federal position or ..

MR. SHRIVER: No, that's not for every federal position.

COMMISSIONER LIPNIC: .. every position that requires a suitability determination?

MR. SHRIVER: No, that's not for everyone. It's just that I think there are a smaller amount of jobs that are in that lowest level category than are in the other categories, so more of our investigations involve that kind of follow-up. I think there are some people who fill out the form and that may be it. There may be a database check, but there may not be an actual investigation .. an actual interview. But I think that that's pretty rare.

COMMISSIONER LIPNIC: Okay. And then can you give us examples of convictions that OPM would find relevant to .. even just positions at OPM maybe, if you can't speak to other federal agencies, but ..

MR. SHRIVER: You know, I really don't. I'm really not involved in what OPM is doing as an employer on these kinds of things. I can tell you that one thing that OPM has a government.wide interest in, is fraud. We view fraud to be a challenge to the overall suitability policy and the whole process, so we actually reserve the right to take suitability actions on the grounds that somebody has engaged in fraudulent activity.

COMMISSIONER LIPNIC: Okay. And then in all cases for OPM, if someone has a conviction that's fraud.related, are they then given some appeal rights or an opportunity to explain that, or ..

MR. SHRIVER: Oh, yes.

COMMISSIONER LIPNIC: .. an opportunity to be heard on that?

MR. SHRIVER: Yes.

COMMISSIONER LIPNIC: Okay. And then I had another .. I'm out of time. Darn it.

CHAIR BERRIEN: Do you have one last question?

COMMISSIONER LIPNIC: I have many last questions. I'll come back to you at some future point.

CHAIR BERRIEN: Okay. I will ask a few questions and I suspect, like my fellow Commissioners, will also want to ask more.

But let me ask you, Ms. Kane, you referred briefly in your testimony to the fact that you had been in a situation where longstanding successful employees for some reason a criminal history check was run and you learned, or the employer learned, that some of those employees actually had arrest or conviction records. Could you speak a little to how the workplace responded to that, because that is also a scenario that we see in the work of the Commission?

MS. KANE: Actually one of the situations that was more recent actually came about because the individual came forward and said, I'm glad to hear that you're giving other former gang members an opportunity and then went to share his personal story. That's something about hotels that's very special. You hear way more than you need to, and then you have to deal with that information to make sure that you're not trampling on anybody's rights or doing anything with that information. So confidentiality means a lot with our hiring managers and HR. So that was one situation where it was kind of, you know, self.brought up and just he felt compelled to just say thank you and thank you for the opportunity, we felt. We were honoring him for his ten years of service and so that's how that came about. But he still had the tattoo, so we kind of had a clue if we'd looked harder.

The other situation came up because of a transfer. They wanted to transfer to another department. And in an accounting department we do have a little bit stricter standards because we don't want the credit card fraud. We didn't know enough about this person, had only worked there a year. And so when that came up, actually what was interesting is the background check, she revealed the conviction in the record, but it didn't come up in the background check that's run with a third party. So then that left us with an interesting situation of, okay, you know, we did our due diligence of asking the questions and assessing her for the situation. Unfortunately it didn't work out because she stopped showing up to work, but we did give her the opportunity.

CHAIR BERRIEN: Thank you. And, Mr. Shriver, you mentioned in your testimony, you distinguished arrest records from conviction records, and I want to be sure we have a clear understanding of both when the inquiry is made about arrest records and whether there's a different standard that applies for arrest and conviction records.

MR. SHRIVER: To the best of my knowledge, the question is asked on all of our forms about whether you've been arrested. I'll go double.check the forms after the hearing to make sure, but I believe that's the question. But the arrest in and of itself is not determinative. As I said, our folks routinely then go and track it to disposition. We understand that conviction is certainly substantively different than an arrest, so that's very important that we go and track that to disposition.

CHAIR BERRIEN: And you used the term "criminal history records information." What if anything, does OPM do or advise concerning the accuracy or how any potential inaccuracy in that information might be addressed?

MR. SHRIVER: We certainly come across inaccuracies for example in some of the criminal record databases that we check and we have .. as a rule, we follow up with that entity and advise them generally when there is an inaccuracy, that we've come across an inaccuracy.

CHAIR BERRIEN: And, Mr. Curtin, could you speak a bit about not only the experience of the Kitchen with people who are working shortly after release, but also years out, the experience of alumni of the Kitchen, ability to transition out of the D.C. Central Kitchen context to other employers and other types of employers?

MR. CURTIN: Well we have folks who've graduated from our program that are employed in restaurants, hotels, the Convention Center, National Institutes of Health, places all over the city. We had actually a graduate speaker. I believe she graduated about six years ago who's a manager of a catering company that came back and spoke to our graduating class a month.and.a.half ago. I'll be honest with you, one of the things that I wish we were a little better at, is capturing all of these stories, but I do know that places like the Convention Center, for example; they've been hiring our graduates for a dozen years or longer. And without that very positive track record, that would not continue.

One of the issues we fight, especially in the hospitality business, is the association we have if an employee does fail. A manager is immediately going to make that association and say, well, you know, I tried to do the right thing, but boy, never again. And as anyone who's worked in the business knows, that this person could've been a model employee for six months and had an .. and slipped. But in that six month intervening period there were probably dozens of people who didn't show up for work, didn't call, had issues on the job, and that was just the cost of doing business. So we; and I believe Victoria mentioned this, have to work extremely hard, as do the Homeboys out in .. Father John out in California, to make sure our graduates understand the power they have to set an example and a bar for future employers. We would not have the close to 100 percent employment rate at graduation now that we do if our graduates were not being productive employees out in the community.

CHAIR BERRIEN: Thank you. And I will just say, your web site also has some very interesting information and direct experiences of people who've come through the program for those who can consult it, so thank you.

MR. CURTIN: Thank you.

CHAIR BERRIEN: I want to thank this entire panel for the information you've shared with the Commission. I believe I speak for our entire Commission in saying it was a very, very helpful dialogue and discussion and we will certainly draw on you in the future. So thank you all very much.

We are going to take a 10.minute break. And given our time constraints, we will stick closely to that, so please, we'll start with our second panel promptly at .. I'm sorry, I don't have a .. thank you. 11:20, thank you.

(Whereupon, the above.entitled matter went off the record at 11:10 a.m. and resumed at 11:27 a.m.)

CHAIR BERRIEN: Good morning. And we still have a little time left to say that, but we are on track with our second panel. And they are seated. I'd like to briefly introduce them.

We have Amy Solomon, Senior Advisor to the Assistant Attorney General, Office of Justice Programs, U.S. Department of Justice; Stephen Saltzburg, Professor at George Washington University and Criminal Justice Section Delegate and past chair of the Criminal Justice Section of the American Bar Association; and Cornell William Brooks, Executive Director of the New Jersey Institute for Social Justice. And this panel will speak on local, state and federal programs and policies related to employment re.entry. And we'll begin with Amy Solomon. And let me just say briefly before you start that I know there are representatives of many federal government agencies and offices that are working on these issues, as well as local and state government who I saw over the break. So I want to thank you, and thank really all of the partners of government who have come to the meeting today, as well as those leaders from the private sector who are a part of today's discussion. Thank you.

We'll begin with Ms. Solomon.

MS. SOLOMON: Okay. Thank you. Good morning. My name's Amy Solomon. I may be the only person in the room who's not a lawyer, but I've been working on issues of prisoner re.entry and other public safety initiatives for about 20 years, from government, research and service provider settings. In my current role, I co.chair the Federal InterAgency Re.Entry Council Staff Working Group and represent the Department in other urban policy initiatives.

And at the request of the Commission, my statement today focuses on three things: first, the characteristics of the criminal justice population in terms of the demographics of arrestees and the types of crimes for which they're arrested. Second, the challenges faced by this population. And third, the InterAgency Re.Entry Council, which is chaired by the Attorney General and is working to reduce barriers to successful reintegration.

To begin, a major swath of the U.S. population, some 92 million people, have a criminal history and are therefore affected by background checks when they apply for a job. The majority of arrests in a given year are for relatively minor non.violent crimes. For example, among the almost 14 million arrests recorded in 2009, only four percent were considered serious violent crimes, such as murder, rape, robbery and aggravated assault. And what is often forgotten is that many people who have been arrested for a crime, have not been convicted, and this is true for those not only charged with minor crimes, but also for those charged with more serious crimes.

In terms of the demographics of the arrest population, most are male, most are relatively young and a disproportionate number are African.American. African.Americans account for less than 13 percent of the U.S. population, but they make up 28 percent of all arrests and almost 40 percent of all people who are behind bars.

Incarceration rates in the U.S. are now higher than in any country in the world. We have less than five percent of the world's population, but a quarter of the world's prison population. Over the last 30 years, the incarcerated population has quadrupled, and today more than 2.3 million people are behind bars.

In 2008, the Pew Center on the States brought heightened attention to this issue when it reported that one in 100 U.S. adults was behind bars on any given day. This one in 100 figure, which alone put us on notice, is just an average. We know this rate doesn't hold evenly across all populations. One in 54 men is incarcerated compared to one in 265 women. Looking just at men, we see that one in 106 white men are incarcerated compared to one in 36 Hispanic men and one in 15 African. American men. When we consider young black men ages 20 to 34, the ratio lowers further to one in nine.

Individuals who come in contact with the criminal justice system face significant challenges. A snapshot of jail inmates shows that the vast majority have a substance abuse problem. Sixty percent lack a high school diploma or GED. Thirty percent were unemployed in the month before their arrest. Another 30 percent were under.employed. About 16 percent have serious mental health problems and 14 percent were homeless at some point in the year before they were incarcerated.

In addition, an extra set of barriers, which we refer to as collateral consequences, is imposed on individuals as a direct result of their criminal histories. A new study, funded by the National Institute of Justice and conducted by the ABA, catalogues over 38,000 statutes that impose collateral consequences on people convicted of crimes, creating barriers to housing, to voting, to benefits and more. Over half of these statutes operate as a denial of employment opportunities. And while some of these consequences serve important public safety benefits; others may be antiquated and create unnecessary barriers to employment.

I believe Professor Saltzburg will address this in more detail, but before I move on, I do want to share that the Attorney General recently wrote to every State Attorney General asking them to assess their state's collateral consequences and determine if any should be eliminated, "so that people who have paid their debt to society are able to live and work productively". The Attorney General's letter also said that the federal government would assess the federal collateral consequences, and we are just beginning that work.

It's important to say that criminal background checks can of course serve an important purpose. They give employers a tool, albeit an imperfect one, for helping assess risks to their employees, their customers, their bottom lines and their reputations when making hiring decisions. Employers understandably don't want to hire people who might commit future crimes, but the question is: if a person stays arrest.free for some period of time, do the odds of further criminal activity go down? A recent study by NIJ sheds light on just this issue.

The study aimed to empirically determine the point of redemption, as the researchers call it, when a prior arrest is no longer predictive of any future crimes. The researchers found that for people who commit their first crime at a very young age or who are first arrested for a more serious crime; it takes about eight years to reach what they call the point of redemption. But for those who are older when first arrested, or who commit less serious crimes, this point is reached in as little as three or four years. After staying clean for some period of time, these individuals are no more likely than anyone else to have another arrest in the future. I believe this research has important and very practical implications for the topic we're discussing today.

I'll end with the issue of prisoner re.entry. As noted earlier, more than 2 million people are incarcerated, almost 95 percent are released to the community, and when re.entry fails, the costs are high, in terms of new crime and in dollars and cents. The U.S. spends now more than $68 billion a year to incarcerate people at the federal, state and local level. Because of the scale of the problem and the high failure rates, there's a major opportunity to address re.entry better than we have in the past. As such, re.entry efforts have strong bipartisan support on Capitol Hill and in state houses, city halls and community forums around the country.

The Second Chance Act was passed by Congress with strong bipartisan support and then signed into law by President Bush in 2008, and earlier this month, Senators Leahy and Portman introduced the Second Chance Reauthorization Act. In January of this year, the Attorney General convened a Cabinet.level Re.Entry Council, recognizing that many federal agencies are already focusing on the re.entry population, albeit through different lenses. What the Department of Justice sees as the returning prisoner population, HHS may view as non.custodial fathers, the Department of Labor may see as the hard to employ, and HUD calls men in public housing. The opportunity here is to connect the dots and invest in re.entry in a way that will improve outcomes that all of us would like to see in areas of public safety, family well.being, public health, employment, education and the like.

The first meeting of the Re.Entry Council included seven Cabinet officials and other key administration leaders, such as Chair Berrien. The Council adopted a mission statement to enhance community safety, to assist those returning to be productive citizens, and to save taxpayer dollars. The Re.Entry Council now represents 18 federal agencies and we're working together to leverage federal resources, to remove federal policy barriers, and to use the bully pulpit to dispel myths and clarify federal policies.

To cite just a couple examples where we've made progress: we have identified and mapped for public use, all of the major federal resources in the area of re.entry going to state and local grantees. Particularly in this economy, there's a good opportunity to look at where our collective resources are going, where there's duplication, and where we have opportunity to leverage. Most pertinent to this Commission, we have a very active cross.agency group that's focusing on barriers to employment. They're taking a hard look at this issue, considering all the federal tools that we have to work with and are developing recommendations for the Council's consideration. EEOC has been a key partner in this effort.

Another working group is focusing on access to benefits such as TANF, food assistance, Social Security, veterans' benefits and others that can help stabilize this population after release. And we have developed public education materials, a Web site and a set of what we call Re.Entry Myth Busters to clarify federal policy on a number of issues. Among the myth busters are five which focused on employment issues including an EEOC myth buster providing guidance to employers who want to better understand the appropriate use of a criminal record in making hiring decisions.

In closing, we know from research that stable employment is one of the best predictors of successful re.entry and desistance from crime. If we want people with past criminal involvement to be able to support themselves, support their families, pay their taxes and contribute to communities; they need to be able to compete for legitimate job opportunities when appropriate.

I applaud the EEOC for holding this hearing and I'm happy to answer any questions. Thank you.

CHAIR BERRIEN: Thank you and thanks to you and to Attorney General Holder for your leadership on the Re.Entry Council.

We'll hear now from Professor Saltzburg.

PROFESSOR SALTZBURG: Thank you very much Madam Chair, Members of the Commission. I do represent the American Bar Association here today; it's 400,000 lawyers world wide. It's the largest voluntary professional organization in the world. And most of the criminal justice policy that the ABA adopts comes through the criminal justice section, which, as the Chair noted, I had the privilege of chairing some years ago. And that section, just so you know, is prosecutors, defense lawyers, judges, parole officials. It's a broad spectrum of the criminal justice system and we operate on consensus. And the consensus, as I think Amy Solomon has said so well today, is that our criminal justice system is broken. We incarcerate too many people for far too long and the consequences of incarceration are far too harsh on the lives of these people. And the question is what can we do about it? Unfortunately, you can't really control the number of statutes that, you know, define crimes, you can't control the number of people who are prosecuted, you can't do anything about that. But when it comes to jobs and what happens to people when they're out of jail and prison; there is a role to play for government and for you, and I'm here to talk about that a little bit.

It is staggering, isn't it, to think about 92 million people in this country with criminal justice histories? I mean, what does that say about the country, about the system, about the way we invest resources? Whatever it does say, it can't be something to be proud of. I mean, to have more people with criminal justice histories than any other country; it's not like winning the World Cup, or even coming in second. So just a couple of numbers. I don't want to throw out too many numbers, but ex. offenders who manage to find employment, earn about 11 percent less in hourly wages than those who have no criminal record. And by the time they're 48 years of age, they'll have earned $179,000 less than someone without a criminal record, it's staggering. But, more staggering is the difficulty they find in getting a job in the first place.

So one of the things that the American Bar Association is proud of is, to work with the National Institute of Justice on this Collateral Consequences of Conviction Project. We're focusing here on adult convictions. And as Ms. Solomon mentioned, we have looked at every state and we've come up with 38,000 collateral consequences of conviction, and it's a huge number. That was the first part of our project. And about 84 percent of them deal with licensing and employment. So when we're talking about collateral consequences, we're not just talking about loss of welfare benefits or educational opportunities, that's tough, too; but when it comes to jobs, 84 percent of the staggering number of collateral consequences are what we are looking at.

The second stage of the project .. and by the way, our NIJ person, Marlene Beckman, is here at the hearing. And one of the other things I should say about this hearing that's sort of so encouraging, if you'd had this hearing 10 years ago, I don't think you'd have much of an audience. The attitude was very different as to whether or not we should worry very much about people with convictions. And now, broad spectrum of the population realizes if we don't worry about it, we not only are treating people unfairly; we're treating the community unfairly, because people don't have the option to provide for themselves and to take their rightful place once they've paid their dues.

So the Collateral Consequence Project that's been funded was first, identify all the collateral consequences there are. Second stage is to identify five particular things: whether a consequence is automatic or discretionary; what type of benefit actually is affected; the duration of the collateral consequence; whether there is any relief, a way of getting out of it; and finally, what crime or crimes trigger each one of these consequences.

The thing that's also remarkable, besides the number and the fact that 84 percent deal with employment or licensing; 91 percent of 38,000 collateral consequences don't specify any time period for them ending, so they go on forever. You get convicted at 18 and you're disqualified from being a barber or a cosmetic technician, at 65, you're still disqualified. And most jurisdictions have no mechanism for getting the disqualification removed. Now you can seek a pardon. You can seek a certificate of rehabilitation in some states like New York, but they're difficult to get, complicated, sometimes expensive to figure out how you're going to do it, and largely ineffective. And so this Collateral Consequence Project in large part is to educate us all on just what we've done in terms of disqualifying people and disabling them from getting jobs and licenses. And it was really encouraging to us that Attorney General Holder wrote the 50 Attorneys General and the Attorney General for the District of Columbia and said, take a look at what you've done and see whether or not you can't change your laws, your regulations and your statutes to remove some of these collateral consequences.

If there's a sort of surprise in the picture, it is, to many people, how invested prosecutors have become in supporting re-entry programs and in trying to deal with collateral consequences and to reduce them. There was a time when prosecutors .. oh, I said about a hearing 10 years ago .. 10, 15 years ago you wouldn't have found prosecutors who were committed to re.entry as much as they are to convicting people, and why? It's because, as the Brooklyn DA, Joe Hynes, is fond of saying, it's all about public safety. If you give people an opportunity to work, and you give people an opportunity to find housing, and you give people an opportunity to educate themselves and to improve themselves; you reduce crime. You reduce the number of victims. You improve public safety. It's a win.win all around. And that's why prosecutors .. the most conservative prosecutors, the toughest on crime are also the most supportive of re.entry. They're not afraid to put people away who need to be put away and to lock them up for a long time; but they know that more than 95 percent of them are coming back. And the question is: how are they going to come back? It makes no sense to train them in prison and then disqualify them from the very jobs that you trained them for. I mean, that's just, you know, bad public policy, a waste of taxpayer money, you know, and a poor use of public resources, and yet that's what we do.

One of the things that the ABA takes considerable pride in is, that the challenge of dealing with these problems was really thrown at us by Supreme Court Justice Anthony Kennedy in August of 2003 when he came to the American Bar Association and gave the keynote address, and he said: "Too many lawyers and too many judges think that the criminal justice process ends when the judge hits the gavel and sentences somebody." He said: "That's not the end, it's the beginning, because that person is coming back to the community. And either we're going to figure out a way to get that person back in a role of a contributing member of society or we're going to continue the process of recidivism, never.ending, you know, people .. the never.ending cycle of prison, release, and prison and so on." And so he challenged the ABA and within a year, the ABA Justice Kennedy Commission reported, and the ABA House of Delegates, almost unanimously on most of our issues, adopted some policies that call for reducing the incarceration, alternatives to incarceration and promoting some of the things like re.entry that we're just getting a handle on.

I chaired that Commission, and then I had the privilege of chairing the Commission on Effective Criminal Sanctions, which was a follow.up, and with the great help of many people, including Margy Love, who's here today, who's been a wonderful, wonderful resource dealing with collateral consequences. We came up with a number of policies that basically recommend against, to the extent we can do it, releasing criminal history information to employers by the government, limiting the criminal record information that's released, having better laws and regulations that require accuracy in the production of criminal histories by providers who are the private providers. I mean, we recognize that in the Internet age we live in, the truth of the matter is that criminal histories are harder to control. It's harder to get a handle on how you prevent employers from doing their own research. It's hard to get a handle on how you make people get accurate information. I mean, you can Google somebody, you may find out that he or she has been arrested, but Googling may not tell you what happened to them. It's important that OPM is looking at the history, following cases through, not satisfied with just looking at arrests. That's very encouraging.

But, for a lot of employers, they don't have that resource available. And so the question is: what can we do in terms of policy to let employers make the decisions that are correct? Look at the individual, look at the job, and decide whether there's a fit. And that's what we're all working at.

So, Madam Chair, I look forward to answering any questions that the Commission may have.

CHAIR BERRIEN: Thank you Professor and, again, thank you for your longstanding leadership of the ABA efforts in this area.

And, finally on this panel, we turn to Cornell Brooks.

MR. BROOKS: Sure. Good morning Madam Chair and Members of the Commission.

First of all, I want to extend a word of appreciation to each of you for your leadership and attention to what is no less than a profound civil rights challenge and an underappreciated, underestimated, economic challenge; that is, the treatment of individuals, men and women with criminal records.

My testimony today will focus on four areas: The broad, underappreciated, underestimated economic harm caused by the arbitrary employment barriers to men and women with criminal records; number two, the importance of maintaining the presumption of disparate impact; number three, incorporating the growing research on recidivism into the EEOC's guidance; and lastly, the need for education on fair employment best practices.

The employment barriers faced by men and women with criminal records is profound, particularly in this very trying economic recession and uncertain recovery. The statistics bear this out. Based on an estimated 12 to 14 million ex.offenders in the workforce .. of working age in 2008; it is estimated that ex.offenders lowered the overall employment rate by as much as 0.8 to 0.9 percentage points, male unemployment rates by as much as 1.5 to 1.7 percentage points, and, among those less educated men, as much as 6.1 to 6.9 percentage points. These employment losses cost the country $57 to $65 billion a year.

The impact of criminal records on employment was largest for African.American men, lowering employment rates between 2.3 and 5.3 percentage points. Even prior to the Great Recession and this uncertain recovery; once prison inmates are added to the jobless statistics, total joblessness among black men has remained around 40 percent through recessions and economic recoveries.

By 1990, the risk of parental imprisonment was greater than 25 percent for African American children, and for white children, the risk was about four percent. Each male prisoner can expect to see his earnings reduced by approximately $100,000 over his prime earning years following a period of incarceration. These statistics are numbing in their familiarity, but no less unsettling. These statistics are revealed in the families, the faces, the lives of the people we represent as legal clients and as workforce development clients at the New Jersey Institute for Social Justice.

The Institute is in fact, we like to think of ourselves as a social justice think and do tank. That is to say, we wrap our arms around people as we try to encourage them, nurture them into the world of work and responsibility through our workforce development programs, particularly ex.offenders. And we are a think tank in the sense that we try to wrap our minds analytically around one of the most pressing problems facing urban America.

When we think about the fact that we have 2.3 million people behind bars, at least 65 million Americans with criminal records, one in 100 adults behind bars; we clearly face an unprecedented civil rights challenge. But the lessons that we have .. I should say these statistics are revealed in the faces of our clients. For example, we represented a 40 year old .. rather, 60 year old African.American father, grandfather and pillar in his community who worked for a state contractor. The state contractor had a contract with the state. When his criminal record was disclosed, he ran the risk of losing his job. This was a 40 year old conviction for the possession of five pills of Valium in 1961. It took an evaluation by the Dean of the Rutgers School of Criminal Justice, an evaluation by two professors who were members of the faculty of the Yale School of Medicine, and a gubernatorial pardon at the hands of the former U.S. Attorney and present Governor, Christopher Christie, the first such pardon in decades within .. beyond the first year of a .. last year of a governor's term. We have represented individuals who have had the door shut in their face time and time again when they sought the opportunity to work, to pay taxes, to contribute to the well-being of their families.

The lessons that we have gleaned from our experience at the state level in a little laboratory called New Jersey may be instructive for this Agency. Back in 2009, we put together a statewide coalition of 70 organizations which represented the gamut .. that ran the gamut of ideology and political philosophy, but this group of organizations successfully pushed for something called the re.entry legislation, which was called by the New York Times, a model for the nation. That legislation resulted in requiring a lifting of the felony drug ban on welfare and food stamps, allowing custodial parents to receive food stamps to support their children and welfare to allow people to transition into the world of work, requiring that the Department of Corrections provide identity documents; that is, birth certificates and driver's licenses, so essential for employment, and establishing for the first time something which will strike many as common sense: mandatory education for those behind bars with relevant vocational and digital literacy training.

What we found was, in putting together this legislation, that it was critically important to reach across the aisles. So we had the former Democratic governor with the support of the present Republican governor, the community corrections industry, members of the Democratic and Republican legislative caucus, members of the faith community stretching all across the denominational spectrum, prosecutors, members of the community who call themselves Democrats and Republicans. We believe that the lesson learned from that experience is important here. We believe that it is critically important for the EEOC to engage other partners in this endeavor to make the American workplace as competitive as is possible.

With the Re.entry Council, we would encourage the involvement of the Department of Commerce. It is important when we consider that the Department of Commerce is an emissary and an ambassador for American business. To the extent that it can promote competitiveness in the American workforce; it can also promote the adherence to America's civil rights laws, particularly Title VII.

It is also important that the Department of Commerce be at the table in terms of promoting re.entry projects at the federal level, partnering with the EEOC and other federal agencies to educate businesses as to both the civil rights and the economic challenge by the use of criminal records, or the misuse of criminal records, and convening a cross section of corporations to discuss the unnecessary and oftentimes economically inefficient barriers to employment for men and women with criminal records. And finally, educating the business community on the government incentives for hiring individuals with criminal records, such as tax credits and bonding.

We believe it is important to bring the Small Business Administration to the table along with the National Association of Attorneys General into the conversation. If small businesses comprise more than 99 percent of the establishments and 80 percent of the total employment in inner cities, if small businesses hire about eight percent of the private workforce, just under 9 million people; they are an essential partner in addressing this economic challenge and this civil rights challenge. We believe it is also important, critically important, to support research which demonstrates and makes clear that this is not a civil rights challenge for them, but rather an economic challenge for us. So we are engaged in a partnership with a former Chief Economist of the U.S. Department of Labor, Bill Rogers, in putting together what we believe will be the first macroeconomic study which will assess the impact of incarceration not on merely individuals, but on the urban labor market. That is to say, to what extent do these collateral sanctions depress household wages, depress employment, depress the ability of cities to attract jobs, offer stability and promote public safety?

It is also important to maintain the presumption of disparate impact. Employers continue to urge the EEOC to revise its policy statement to eliminate the presumption of disparate impact. But the EEOC should reject these arguments and reaffirm the presumption because: the data supports the continued validity of the presumption; producing more particular statistical evidence would prove prohibitively burdensome; and there is no consensus as to the local data not reflecting national trends.

It's important that we incorporate the growing research on recidivism into the EEOC's guidance. The threefold test with respect to business necessity is clear, but we believe that there are other factors that should be considered. For example, the number, nature and gravity of previous convictions, individual indicators of rehabilitation such as work history, family ties, community involvement and successful participation in rehabilitation programs, that which the scholar, Devah Pager, called, "positive credentials." We like to think of ourselves at the New Jersey Institute for Social Justice as being the Stanley Kaplan or the Princeton Review of workforce development. That is to say, we take people who are seeking to turn their lives around and give them the credentials that most of us carry and take as a matter of course.

Lastly, I would add that the EEOC stands at a critical crossroads and is well.positioned to offer guidance to employers, guidance to small businesses in a way that not only protects American workers from violations of Title VII, but also equips small businesses, also equips business to compete for the very best workers.

With that said, I'm open to take any questions.

CHAIR BERRIEN: Thank you. And thank you to this entire panel for your testimony. We'll turn now to Commissioner Ishimaru to begin questions.

COMMISSIONER ISHIMARU: Thank you Madam Chair, and thank you for putting this panel together. I am somewhat stunned after hearing the presentations, stunned over the numbers, stunned at, you know, hearing about the collateral consequences laws that are out there and the numbers, how 84 percent involve employment or licensing, how 91 percent have no time period. It does not surprise me, from my work with prosecutors at the Department of Justice, of how even the hardest.nosed prosecutors don't want the churn, they don't want to keep doing this over and over, seeing the same people that they're dealing with prosecuting. Yet, you know, we have these structural barriers out there and I think it's fair warning to us on how we deal with it as a Commission and providing guidance in bringing lawsuits and whatever we can do as an enforcement Agency, that we just can't focus on the charge in front of us necessarily, but we have to get to the bigger picture.

And so with that, let me throw out a few questions. And I think the question, Ms. Solomon, on the point of redemption and the analytical research that's been done on that points me to a question of whether, at some point, should you suggest, prohibit, ban the use of asking this question from what may or may not be accurate information on someone's criminal history? Should you just stop asking? Should you prohibit that from being asked after some point in time?

MS. SOLOMON: Well I think the research, which I'll say was done by Al Blumstein, a colleague who's just one of the preeminent criminologists in our field, certainly points to the fact that there's a time at which it's no longer relevant statistically in their research, which they're now duplicating in two other states and with two other time periods. They're finding that during this window, which again depends on a number of factors, but between three and eight years, at the end of that point, when you look at the general population, there are no differences. And I think that we need to share that information very broadly with the field and with employers so that they know the relevance of that information for applicants who have basically been clean from the criminal justice system for a number of years.

COMMISSIONER ISHIMARU: Right, and certainly one thing that's been troubling to me is that, so many people, so many employers use this in an over.broad fashion, that it affects all their jobs and it affects all their employees or applicants for jobs. And, you know, are they losing out on good employees who would do a fine job for them by asking this and using this as a screen to keep people out? And that's something that I think we have to educate people on.

You know, one of the other large questions that I have is going to the accuracy of this information in both public and private databases. And Professor Saltzburg, you had mentioned how variable this information is. Does the ABA have a position on both the cleanliness, if you will, of criminal history records and whether given .. if it's notoriously unreliable, you know, should you ban its use? Should you regulate its use? Should the government be the one who should be controlling what information gets out there?

PROFESSOR SALTZBURG: We do have a position. And let me, if I can, I want to talk about the point of redemption and one other thing and get to that next. My recollection is the Fair Credit Reporting Act, when it was first enacted, barred a credit reporting Agency from reporting a conviction that was more than seven years old, and Congress changed that law.

COMMISSIONER ISHIMARU: Yes.

PROFESSOR SALTZBURG: And so it opened the door to reporting anything regardless of age. It's interesting that originally I think Congress had the sense that there was a point of redemption, and they might not have had it exactly right. The one problem, though, with the point of redemption is, it's very important when people are released, they need jobs now.

COMMISSIONER ISHIMARU: Right.

PROFESSOR SALTZBURG: You can't tell them, wait three or four years and if you have a clean record, it'll be great, because if they can't get a job, they're not going to have a clean record, that's just a fact. But what the Attorney General has said is, the FBI criminal justice histories are inaccurate and 50 percent of them can be wrong. And that's not the FBI's fault necessarily, because they get the 50 states sending them information. The states may send information that X has been arrested and they may not follow up, or that X has been convicted but the conviction was overturned. The overturning might not be in the record. So it's hard to say there's anything out there that's totally reliable.

When we interviewed the credit reporting agencies, they told us that they actually go to the courthouses and they go and they check records and that they follow up to make sure. We had our doubts about whether that was done all the time and whether it was done accurately and whether there was any way we'd know whether it was done accurately and think that one of the things that ought to be out there. And it's .. our recommendation is they ought to be responsible, financially responsible for errors in reports, because, I mean, they could disqualify someone for a job. They ought to be very careful, and they're not, about not reporting convictions that have been sealed and they're not supposed to be reported anymore, but the problem is, they can find them sometimes. And the whole purpose of sealing is undercut, or expungement is undercut, when they continue to report those records. And yet they can say, it's honest reporting. They're letting the employer decide, but the employer shouldn't have that information.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I could go on forever, but appreciate the time.

CHAIR BERRIEN: Thank you Commissioner.

Commissioner Barker?

COMMISSIONER BARKER: I want to thank all of you for .. Ms. Solomon for what you said, Mr. Brooks for your testimony, very informative. And Mr. Saltzburg, I'm very disappointed to hear that there are clerk's offices in certain courts that are actually, you know, releasing sealed records. That's very disheartening to hear.

That said, I'll defer the rest of my time to my colleagues.

CHAIR BERRIEN: Thank you Commissioner.

Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. So as I said before, I mean, our jurisdiction is whether there's a violation of the civil rights laws. And so I just want to state again the statistics that I got out of your testimony, I think, Ms. Solomon, but I just want to say it out loud again here, right? That in terms of the people behind bars, one in 106 white men, one in 36 Hispanic men, one in 15 African.American men. Okay, so, to me, there will be a disparate impact if you are going to be using criminal history. And again, my comment before, in terms of where I grew up, I'm not surprised with some of this. One of the things we really can't do anything about is the overall structural economic poverty situation that in fact creates some of this, okay?

Then the other statistic about in 2009, of 14 million arrests, four percent were for the serious violent crimes; murder, rape, robbery. We heard before in the first panel people's perceptions. People will be violent. That's four percent for those seriously violent; ten percent simple assault, mostly domestic violence; eighteen percent property crimes .. and this isn't robbery, this is like the guy who might have stolen the food, right, from the corner store; twelve percent drug offenses; fifty.six percent public order, DUI, weapons violations. So a lot of those folks who might have those criminal convictions are not people who would be bad workers. They're just not, okay. So then the question becomes, yes, something can have a disparate impact. You can still apply it if it's job.related and consistent with business necessity. So how is it that you would look and decide .. and you started this, Mr. Brooks; I'm going to start with you .. other factors once you find out? Let's assume there's not a bar on asking, but you find out. How is it that you then exercise the judgment to decide whether this is someone who is not appropriate for a job or is still appropriate for a job?

MR. BROOKS: Certainly. Well, we think it's critically important to look at the nature of the job itself. What we found was, for example, working with one of the largest employers in the State of New Jersey in terms of trying to get them to open their doors to considering allowing ex.offenders to compete for work is, what we found is that generally speaking, the general counsel's office would overreact, in conjunction with the human resources office. And once we sat down with them, talked through with them what are the collateral sanctions, what does the law actually say, who are you actually prohibited from hiring? Starting there, then looking at the nature of the job itself; then encouraging them to look at the number of offenses, the kinds of offenses, indications of rehabilitation and taking a very granular look. We found that that was a very practical approach, consistent with the kind of guidance that we are urging the EEOC to put forward and to clarify. We've seen this work. We've served over 200 or so people through our workforce development programs, in terms of putting ex.offenders to work. And what we found over and over again is if you can get people to look at the offenses, look at the job, look at the evidence of rehabilitation; then people begin to make the kinds of pro.work, pro.responsibility, pro.economic development decisions that are entirely consistent with Title VII.

COMMISSIONER FELDBLUM: Mr. Saltzburg, do you want to add anything to that?

PROFESSOR SALTZBURG: I think the toughest group .. and I want to build on what Mr. Brooks said. It's easier to make a case for somebody who's been out three or four years and has had a clean record. The tough cases are the people who are being released tomorrow. You can't make a case they've been rehabilitated unless you believe that prisons rehabilitate people. And unfortunately, they are not correctional institutions, you know, in the sense of correction.

So the question is: what do we about them? And the answer is, we got to find employment for them in areas that don't provide high risk, that get them started; and there are some great programs out there. I mean, I mentioned Joe Hynes, I mentioned Brooklyn. It would be worth your going to see the people who come out of prison tomorrow and see when they're called to the DA's office and they're presented with a choice. The DA says I can get you a job, he said, I can get you housing, he said, and I can work with you. He said so that I know .. look, he said I know some of you have drug and alcohol problems, you're going to fall down. He said, we can work with you. If you'll work with us .. and the people are watching them. They're all lying back when they start, and suddenly they're sitting up because somebody's going to give them a job, because somebody's going to help them. And he says you're either going .. it's up to you. You sign up and you can have a job this week. I mean, it's an amazing thing. And if they stay with it, they can grow and move up to a slightly better job and then they can begin to get that record built.

MR. BROOKS: And I should note the 200 people that we placed through our workforce development program into transitional jobs and into permanent jobs were released within the last six months.

COMMISSIONER FELDBLUM: Thank you very much.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair and thank you to all the witnesses for your testimony.

Ms. Solomon, I had a couple follow.up questions for you in your statistics. You said 92 million people who have a .. is it an arrest or a conviction record?

MS. SOLOMON: Arrest.

COMMISSIONER LIPNIC: An arrest?

MS. SOLOMON: A criminal record, yes.

COMMISSIONER LIPNIC: And is that out of the working population, or is that out of the population at large?

MS. SOLOMON: It's the total population. It's mostly adults, but because of how .. it's in state repositories, and I believe a few states include juveniles too, but it's mostly the adult population.

COMMISSIONER LIPNIC: Okay. So out of 330 million Americans, 92 million would have some kind of arrest record?

Okay. And then similar on the study about the point of redemption, is that as to arrests or as to conviction?

MS. SOLOMON: Arrest.

COMMISSIONER LIPNIC: Arrests?

MS. SOLOMON: Yes.

COMMISSIONER LIPNIC: Okay. Mr. Saltzburg, I had a couple of questions for you: In your testimony the one thing you talk about .. and this is in the conclusion of your testimony where you talk about, you know, the concerns to employers, in particular small businesses who, you know, they can't afford to make a mistake in terms of hiring and their potential exposure and liability. And then you talk about states like Illinois have tried to find a middle ground in the form of certificates of rehabilitation. Ex.offenders can apply for a certificate and if they meet a set of factors, they are awarded a certificate that immunizes employers from negligent hiring lawsuits. I wonder if you could tell us a little bit more about that?

PROFESSOR SALTZBURG: You know, we thought that this was something that was really important, that if someone had shown signs of rehabilitation and you had a state provision that said if you get a certificate, the employer who hires you can't be sued for negligent hiring, that would take away the sort of knee.jerk reaction of general counsels, even for small companies where it's always easier to say no. You know, but if you're saying no because you're worried about a lawsuit; which by the way, we decided was a worry that was overblown in most instances; there aren't that many suits, that that is a real plus, and things like bonding. Federal bonding is a real plus. Anything that will make the employer comfortable that they won't increase their risk of liability as a result of hiring an ex.offender is a good thing.

COMMISSIONER LIPNIC: And when you say in terms of their .. for the employers looking at their risk in terms of, if they .. potential lawsuits. But there's both sort of the number of potential lawsuits and then there's, you know, if they have a catastrophic liability, right? So it wouldn't just be .. you can't just do it on numbers, right? I mean, you'd have to have a matrix about .. you know, you can have a very small number with huge consequences, right?

PROFESSOR SALTZBURG: That's really true. And that's the worry.

COMMISSIONER LIPNIC: Okay.

PROFESSOR SALTZBURG: It is a genuine worry that a jury will be less forgiving than the employer was who made the hiring decision.

COMMISSIONER LIPNIC: Right. And, Mr. Brooks, can you talk about in terms of .. I'm just curious, in terms of your experience in New Jersey, is there anything similar to this certificate of rehabilitation, or have you in your discussions with all .. and work with all the public officials in New Jersey have .. or talked about this, or ..

MR. BROOKS: Yes, there is and we certainly make use of the bonding program and tax credit programs as well in terms of encouraging employers to hire the people who come through our programs.

COMMISSIONER LIPNIC: And can you tell us a little bit more since we heard earlier about the bonding programs, too, about the bonding programs? Maybe Ms. Solomon .. I don't know if you can address that as well.

MR. BROOKS: It provides, I believe, $5,000 or so of coverage within .. for the first six months of .. against theft. Let's see, theft and .. I've forgotten the rest of the language, but bonding for that first six months of employment.

COMMISSIONER LIPNIC: And is that something that's part of the Second Chance Act, or? ..

MS. SOLOMON: No, I think it's been around for a long time. It's .. the Department of Labor sponsors it. I believe a certain number are free for states to access. And if I may, I'll just say that as part of the Re.Entry Council work, we've developed some myth busters, which are all one pagers that either shed light on a federal policy issue, or really just serve as a fact sheet to give information to employers and others. So we do have a myth buster on the federal bonding program and on the work opportunity tax credits that more people can see the incentives that are already in place for hiring this population.

COMMISSIONER LIPNIC: Okay. And it sounds like that you .. from what Mr. Saltzburg said in his testimony that you may need 38,000 myth busters, since he said there are 38,000 collateral consequences. So and one of my questions Mr. Saltzburg is in that .. and particularly when you talked about .. I think you said 84 percent of those may have to do with some kind of state licensing requirements or some ability then to be employed. Do you have information about how many of those licensing requirements are relatively new, say within the last 10 years, or are these things .. you know, state laws that date back, you know, a century? Or to get a barber's license, you know, I mean, I assume you've had to ..?

PROFESSOR SALTZBURG: I can answer this this way: We didn't study that. And actually our Web site is very friendly. I urge you to go on it and take a look, because you can look at your own state and just sort of play around and you see what kind of collateral consequences there are. But what we found generally when .. on the Kennedy Commission, the Commission on Effective Criminal Sanctions, is that there's an accretion, that over time that legislatures and regulatory agencies add. They rarely go back and take anything away. And so what you see is some of them will be older and some will be new. And if somebody commits a crime who's a former offender in a particular job, then you may get a provision, we got to deal with that. And the real .. the ones that are most worrisome are the automatic ones that say that there's no discretion, because there it doesn't matter whether you persuade an employer that he or she would take a chance, if they do, they violate state law. And that's sort of the .. you know, the most troublesome.

COMMISSIONER LIPNIC: And in your discussions with both federal officials and state officials, and also you Mr. Brooks, is that something that you're trying to engage with them on, and in particular these sort of automatic penalties and ..?

MR. BROOKS: Most definitely. Say for example the prohibitions with respect to alcohol licenses .. and we have a very large arena in downtown Newark where people are prohibited from working, with the exception of .. without .. unless they go through a very cumbersome seven step waiver process. So in other words, if you want to mop the floor, serve hot dogs, because they serve alcohol in this very large arena of hundreds of thousands of square feet, you're prohibited from doing so. To make the point absolutely clear, if you can imagine the day this arena opened they had two lines; one for people with criminal backgrounds, one for those without. That's a stark illustration of the degree to which these licensing and statutory barriers keep people from working.

COMMISSIONER LIPNIC: I see my time is expired. Thank you all again for your testimony.

CHAIR BERRIEN: Thank you. I would like to follow up briefly on the activity at the state level and particularly if anyone can speak to the Council of State Governments' involvement as well on these issues of re.entry and reemployment particularly.

PROFESSOR SALTZBURG: The Council of State Governments has been very interested and supportive of re.entry programs, and unfortunately its efforts have not yet resulted in a reduction in the number of collateral consequences related to employment and licensure. Now one of our hopes is with the funding by NIJ and the development of this Web site that people will be able to find things that were almost unfindable. That's the other thing -- you had to look through, you know, enormously different and disparate places, in state codes and regulations to find stuff. Well what we've done is put it all in one place so that, as I said, anyone of you, anyone of the people here can go on the Web site and just plug in a state, plug in a crime, plug in a collateral consequence and you're able to find out what's there. And the hope is that maybe now we can go back and take a look in the various states and see. You know, now that re.entry's so hot a topic and so widely supported, whether there's a .. we can generate a movement to start reducing rather than adding to the number of collateral consequences, or at least providing more discretion where there were automatic disqualifications before.

CHAIR BERRIEN: Yes, Ms. Solomon?

MS. SOLOMON: Explain briefly. The Council of State Governments since 2000 has really put so much of its policy weight behind this issue. They built .. really it was a Noah's Ark of a Re.Entry Policy Council that had, you know, two prosecutors, two defense lawyers, two victim's advocates, law enforcement, formerly.incarcerated people, to put together some consensus statements about this issue. And this report; it's a phone book of a report that came out in 2005, but it really lists a comprehensive set of recommendations in this area that is just as current today as it was then. And they've galvanized, I would say, lawmakers at the federal level, at the state level in a very bipartisan way around this issue to come up with practical solutions. So I think they've done a large part of the work in bringing attention to this issue and practical evidence.based solutions.

CHAIR BERRIEN: Thank you. Mr. Brooks, I note that you're also .. in addition to being an attorney and non.profit leader, you're also a minister. And I wondered if you could speak a bit about the faith.based community engagement?

And also Ms. Solomon and Professor Saltzburg, since you have been involved with coalition efforts as well, you might well want to weigh in on that issue.

MR. BROOKS: Sure. I think one of the things that's greatly encouraging about the faith.based community is contrary to the popular assumption, members of the .. whether they be faith.based .. members of the faith-based community, whether they be ministers, rabbis imams, all stand in opposition to law breaking. But they also stand steadfastly in favor of law.abiding behavior, and as a consequence very much believe in redemption. And so some of the most valuable partners that we've had in our efforts in New Jersey have been members of the faith.based community who've stood literally side.by.side with Attorneys General, with county prosecutors in pushing for this legislation. It's been critically important.

And on a personal note, I've had the experience of having someone ask me to serve as a character witness in court, asked to find a lawyer and then asked to talk about and teach about and perhaps preach about the need to come back to a community, contribute to a community, participate in the community and live a life of redemption. This re.entry problem, this civil rights challenge is probably most pronounced in the pews in the sense that it is a place where America recognizes this issue for what it is, a profound moral challenge.

MS. SOLOMON: I would just add that the faith.based community has been a tremendous partner in doing this work in the communities and in the .. they're Second Chance grantees, they're Department of Labor (Rexa) grantees. And just to give a sense of the demand, in the field last year we awarded 188 Second Chance grants. We had over 1,000 applicants, 1,000 applicants for service providers who want to assist this population with all the kinds of services we're talking about. A large number of them were faith.based providers. So I think that there's a real capacity out there and demand to do more of this work.

MR. BROOKS: I agree.

CHAIR BERRIEN: And Ms. Solomon, you mentioned crime victims as part of the discussion that the Council of State Governments launched. If you and the other members of the panel could speak to that.

MS. SOLOMON: Well it's an essential voice that we need to have at all of the tables when we talk about this. As much as we're talking about I think very progressive re.entry policies, as all of the panelists have said, this is about public safety as much as anything else. And so I think that incorporating victims' voice, solutions, ideas into the solutions we're talking about is just essential.

PROFESSOR SALTZBURG: Mine is a little anecdote I can give you about this. When we started the Kennedy Commission, Congressman John Conyers came before us and he said to us, he said, "If you can't sell this," he said what .. your policies, "if you can't sit down and sell it to somebody in a bar, Joe Sixpack, or to a crime victim," he said, "you might as well not bother." He said, "Just do your report and stick it on a shelf and it'll go like all the other reports that people do." And so this became real to me when we did a presentation of the Kennedy Commission recommendations at the University of Maryland. And after that they asked me to go on talk radio. And it wasn't Joe Sixpack, it was Jane Sixpack called up and I talked about our recommendations, and what she said was, she said, "My husband just got laid off from his job, my husband had been working" .. I forget how many years. "He's never committed a crime, why are you pushing employment for people who've broken the law?" And I realized that .. I heard John Conyers' voice. I said if I can't answer this question, I said for her .. or it could have been a victim calling up saying I'm a victim, you know, why are you pushing .. well the answer is exactly what Ms. Solomon and Mr. Brooks said: Because if you don't deal with this, you're going to get more crime and more victims. And it was really well.said I thought in your prior panel when one of the witnesses said with people who working for him in the Kitchen, they're not saying we should get a preference. They're not saying we should have a right to any particular job. But as you put it, we should have a right to compete. And that I think sells, and it sells because it's real, that if you want to reduce crime, then you've got to give people a second chance. It's that simple.

CHAIR BERRIEN: Thank you. Thank you to this entire panel. And in the interest of time we're going to move directly to our third panel, so I'll ask you all to .. you're of course welcome to stay and the witnesses will take your place at the podium.

As we make the transition between panels, I want to remind everyone present, everyone listening online and note for the public record that earlier this year the Commission instituted a practice or a policy where members of the public who would like to comment on any subject of a Commission meeting are free to do so for 15 days following the Commission meeting. And so the record will remain open. And at the moment I cannot find the email address. I'll get that from our Executive Secretariat and then announce that again before we close. But please know that as valuable as the testimony we've received today is, we also welcome viewpoints from those in the audience or others who may have an interest in today's meeting topic.

I'd like to welcome our final panel of the day, and this is the panel on legal perspectives and legal considerations and standards. This consists of three members of the bar, and we are delighted that you have come to join us today. Adam Klein from the firm of Outten & Golden and Barry Hartstein from the firm of Littler Mendelson. And continuing with the ABA representation of the day; both have been very involved with the American Bar Association's Employment and Labor Section, as well as having very active practices in the private Bar. And Juan Cartagena who is the recently appointed President of Latino Justice and a longstanding and active member of the New York and New Jersey legal communities. We welcome you all to today's meeting.

And we'll begin with .. I want to begin this panel with Mr. Cartagena.

MR. CARTAGENA: Good afternoon Madam Chair and Commissioners. Thank you so much for inviting Latino Justice PRLDEF to be part of this important discussion.

I have the privilege actually of returning to a place that I started my legal career at 30 years ago and now have been asked to be the president and general counsel of a major civil rights organization in the Latino community. And it's a privilege for me to be able to share some of the thoughts that I've had in the last 10 years especially of working on the issues of the collateral consequences of the criminal justice system.

I usually refer to this in my writings in the past and I refer to it as well in the testimony I provided to the Commission in writing here as a serious problem of what we call mass incarceration. There is just simply no other way to describe what is going on in America today. I've been looking at the consequences of mass incarceration and the intersection of poverty in the United States and particularly at the consequences of mass incarceration of Latino communities in the United States.

And throughout all these issues .. and I have the luxury as well today to sit here on the third panel after hearing the excellent presentations of the two panels before me that have actually repeated many of the data points that I wanted to stress. I will not repeat those for you. You have them in my testimony and you've heard them today very, very directly and succinctly said.

But my biggest problem in this area for Latino communities in the United States is that there is a lack of data to actually measure what is the impact of mass incarceration on Latino communities? Now in large part that has to do with major problems and holes in data collection. There are still states in this country that still don't know what to do with Latino individuals. Are they white? Are they Black? In fact, that's all they think about when it comes to criminal justice data collection. And as a result, we see some states that have refused or have yet to figure out the number of Latinos on parole, the number of Latinos on probation. And the data says that we have relied upon and I have relied upon in my testimony are all from the FBI Bureau of Justice Statistics. Nonetheless, there are some gaping holes in a handful of states. Latino Justice PRLDEF works in most of the Eastern Seaboard. States like Maryland have yet .. and some of the states that I've documented here in my testimony have yet to completely report on the level of people who are on probation or parole.

So we have an issue with trying to get enough data to assess what the impact is, but I have been able to identify enough to state that mass incarceration is also a Latino issue in the United States. For the kind of data that you've heard earlier panelists explain, the number of Latinos who get incarcerated in this country are far disproportionate to the share of the population. More importantly, many; and this has been documented by BJS Statistics, Hispanics are twice as likely as whites to be admitted to state prison for drug.related offenses and have a lower share of being admitted for violent crimes than the general population that is in prison. Now the fact that they're twice as likely to be admitted for drug related offenses stands in stark contrast to most of the data on drug use in the United States. Latinos have one of the lowest rates of life time illicit drug use, about 38.9 percent compared to whites at 54 percent and African.Americans at 42.8 percent. And there is the problem.

You've heard the previous panelists on this .. before today tell you that we have a broken criminal justice system. To be more specific, we have a broken criminal justice system that produces racially.skewed disparate outcomes. The best way to stop .. or the best re.entry programs are actually the ones that focus on stopping the entry. And I have been focusing on law enforcement policies, particularly in urban America, and how they address Latino populations for quite some time. My biggest concern is that law enforcement is often racially.targeted, often targeted at people who are in the most poorest sections of urban America and produces the very same outcomes that we see. If law enforcement is targeting individuals disproportionately at the front end, the outcomes are going to be skewed no matter what we do.

Latino populations therefore are also found within the ranks of people on probation and parole, of course, as best that the numbers can give us. There are about 18 percent of all adults on parole are Latino, which exceeds the share of the population about 16.3 percent, according to the 2010 Census. Thirteen percent of all adults on probation are Hispanic, which is actually under representative of their share of the total population of 16.3, and also says quite a bit about who gets to get probation and avoid incarceration altogether in America's courts, which is another data point which produces incredibly skewed racial outcomes.

But the fact is that while we can talk about incarceration for Latinos nationally, it masks the regionalization and the specific localization of a lot of these issues and problems in America, particularly in the states across the Eastern Seaboard that we focus on at Latino Justice PRLDEF.

The national average, the incarceration rate in the United States is about 751 per 100,000 persons. As we've spoken of before today, you've heard already, the United States out-imprisons, out.incarcerates any other country in the world. We do punishment very well in this country. We do it well and we incarcerate many individuals. But that national rate is exceeded by .. far exceeded the 751 out of 100,000. Every 1,000 out of 100,000 in states like Connecticut, Massachusetts and Pennsylvania and other states like Connecticut, New York and Pennsylvania, the rate of persons, Latinos, who are either on parole and probation exceed not only the share of Latinos in those respective states, but also the share of the national rates that were mentioned before.

New York and other states, Connecticut and Massachusetts, have very interesting, very progressive.looking, forward.looking state laws that protect individuals with criminal histories in employment; but there is a big gap between enforcement and what the laws say on the books. I worked most recently on issues in New York State, and although the public policy of the State of New York has encouraged licensure and employment of individuals with criminal histories, there are major problems.

I have seen individuals who came to my office when I used to work at the Community Service Society in New York who actually advised us that some state agencies require the individuals to request their own rap sheets, their criminal history documentation, and provide a copy of that, their own copies to an agency for licensure. The problem with that is that agencies who do have permission to get criminal histories directly from the DCJS in New York State, have the official version without the information that's supposed to be sealed, without all this extra information that appears in your own personal copy. The personal copies get requested. The next thing you know the potential employer, or licensing agency in this case, has access to information they should not have to begin with.

I also help point out in our testimony the issue of Puerto Rico. Puerto Rico has, as you all know, a significant relationship with the United States because of its migration patterns over time. About 10 years ago had I been sitting in this chair I would've told you that the migration patterns for Puerto Rico, between U.S. and Puerto Rico were relatively cyclical in nature, both directions. Now in the last five years most of the data is showing there's an out migration from Puerto Rico given the economic collapse there in significant numbers, over 155,000 in the last four years are coming here.

The reason why these issues are important is because the issues of criminality issues in Puerto Rico and law enforcement issues in Puerto Rico will eventually affect Puerto Rico's stateside community as well. And the rate of incarceration in Puerto Rico is about 303 for every 100,000; very, very high. Not as high as some states in the United States, but very, very high nonetheless.

I started looking then at some lawsuits and reported opinions about trying to assess the nature of Latino incarceration in the United States. I was not able to find many that would address this issue. There was a older case actually decided with the Wards Cove interpretation of business necessity, which has now been, as you know, abrogated by Congress since the decision in Wards Cove. And that case, EEOC v. Carolina Freight, brought by the Commission itself, for a trucking position out of Florida, demonstrated some statistically significant disparities between persons with felonies between white and Latinos in places like Dade County.

My search continually to .. trying to find out what the record says in disparities did not reveal that much on the case law side and there are at least two pending Title VII claims now in federal court which challenge exclusion of employment of Latinos with criminal histories. EEOC .. another case by the Commission here against Freeman and a case which my colleague on this panel from Outten & Golden is the lead counsel on, Johnson v. Locke, which challenges the policies of the United States Census Bureau for enumerated positions in this past round of census hiring and we have major problems. We're co.counsel at Latino Justice in that case as well.

The labor segmentation of Latinos will provide a potential way to look at this issue as well, but the labor segmentation of Latinos is relatively evenly distributed among all the categories, according to the United States Census, between management, professional on one end, service occupations, sales and office occupations, construction, maintenance, and lastly production, transportation and moving. That said, there's at least 20 million Latinos who will find themselves in the categories of management, professional, sales, and office ranks, which are likely to be the largest ones that are targeted .. that are used .. frequency .. have a high frequency of criminal background checks in the criminal background check industry.

We have seen, and you've heard today, the importance of employment and retention of employment and the relationship between employment and recidivism in the data that is revealed. I was able to excerpt a brief, an excerpt from an amicus brief that we filed, I filed along with Paul Keefe in New York City that assesses all .. that summarizes all the academic literature on recidivism and employment, the seven year window that we talked about before, the fact that, you know, most crime occurs with individuals that are very young and then tapers off over time. And I will ask you to just also refer to that in my testimony for some good guidance about what can happen with the EEOC's opportunity now to revise its guidance.

Let me end with just two more points.

CHAIR BERRIEN: I think ..

MR. CARTAGENA: One point. Much of what we've heard today, we've heard about in the context of individuals applying for employment. Much of what I hear .. and the clients have come to my office are individuals who already have employment, whose funding source just changed and now they have to go to a background check. It is incredible how the consequences of a conviction play out for a person that you've known because you've had them on your job for three, four, five years, very, very different context. And I would ask you to consider that when it's applied to current employees, that the guidance has to have enough leeway to look at the job performance of your current employees as well.

We do in this country, in the area of felons that have been charged, and I'm very familiar with and in this area, as well as employment, place an inordinate amount of faith in the bona fides of the criminal justice system. It's inordinate. It produces racially.skewed outcomes and that's going to affect everything in the employment side as well. Thank you.

CHAIR BERRIEN: Thank you.

Mr. Hartstein?

MR. HARTSTEIN: Madam Chair, Commissioners, I think I can comfortably now say, good afternoon. I want to thank you for the privilege of being here today. I also want to thank my colleagues at Littler for sharing many thoughts with me and from many individuals outside the firm who have also shared their thoughts with me, but I am speaking today on my own behalf and not on behalf of any particular client or firm, and I hope you respect that.

As you know, I put together a very detailed submission for all of you, and I know that if I read it to you I would get to about page 5 and then be muzzled with the red light going on, so I am going to streamline my remarks, make some general observations, and then of course, be respectful of the red light.

I know that all of you are very sensitive to the issues that need to be weighed in the balance. We've heard today about the public interest and the important public policy of trying to integrate ex.offenders back into society and enter into the work force. We recognize that's an important public policy. And of course, care must be taken in trying to safeguard the interests of employees, customers, vulnerable persons, and a company's business assets. And then of course you throw in the dimension today on issues of security, which we really haven't even had a chance to grapple with based on some of the things we of course didn't hear about and which are frightening, and of course those can't be ignored.

And finally, we've heard about a whole host of state, federal laws and regulations that employers have to deal with, aside from other legal concerns such as negligent hiring, which you've also heard about. So in other words, you have a real challenge on your hands. And I applaud you for holding meetings like this today because I think they're very, very important in terms of the type of dialogue that we need.

My basic premise is that any discussion of an individual's criminal history and barriers to employment must be put in the proper context. It's multidimensional, it's ever changing, there are no easy answers, and there's no standard formula such as one.size-fits.all.

We heard earlier in the last panel about such things as laws that could be or should be on the books, such as protections against negligent hiring. Well, they're not there. We've heard about statistics, some disturbing, frustrating statistics. And if we want to just add to the mix of some of the statistics; there's a Bureau of Justice report that says within three years of release, 67.5 percent of the prisoners were rearrested, 46.9 were reconvicted, 51.8 percent were back in prison. So this is a frustrating and difficult issue. At the end of the day, I know the EEOC is evaluating whether you should go back to the drawing boards and revise the current guidance, particularly relating to criminal convictions, which is really where I want to place my focus in the minutes that I've got.

On that issue, and although some Members of the Commission may disagree with me, I respectfully submit that the current guidance properly addresses the EEOC concerns, particularly relating to disparate impact, by stating that employers really should be considering the three factors of: the nature and gravity of the offense; the time that's passed since the conviction and completion of a sentence; and of course, the nature of the job. And I don't think I'm alone when I share some of those observations. I mean, even, I'm sure many of you have read the NELP Report, and I know that that report has been critical, to say it mildly, of many employers out there in terms of some of their sorts of policies. But it is interesting that even that report does say, and I refer to page 6 of the report, that although the EEOC developed this framework that is your current guidelines, more than 20 year ago, subsequent research underscored its wisdom.

But let me step back for a second, because the touchstone of Title VII and our EEO laws is consistency in the application of employers' policies to avoid disparate treatment. And I of course recognize that disparate impact is another important dimension that can't be ignored. And we learned long ago that neutral policies can have a discriminatory effect on minorities. And so, we recognize all of that. And then, of course, employers then have to come forward with business necessity for what they're doing. Now, and if you look at background checks, for example, and you look at the SHRM study that I made reference to in my submission; the survey seemed to show that employers do implement background checks for legitimate business reasons, not as a tool to try to screen out minorities. Now to the extent that some hiring practices, and particularly hiring restrictions, have been over.broad as has been suggested by some reports, by some of my friends in the plaintiff's bar, and of course by some of my friends at the EEOC. This may stem from the impression that because individuals with criminal histories don't have a protected status under Title VII or under any other federal law; employers need only concern themselves with having consistent employment practices.

Now, even if you think about it, if you look back over the years, for many years employers realized they really shouldn't be looking at arrest records, and I think we've seen progress in that area. Very seldom do you see employers do that today. When it comes to criminal convictions, if you look back and even at the EEOC's own record, and you look at the PeopleMark case, which was filed in September of 2008; that was one of the first times in recent years that this issue had been put front and center. So what am I suggesting? What's the solution? I'm not convinced that revamped or detailed guidelines by the EEOC will necessarily provide the solution I think all of us are looking for. What I really am urging the Commission to do is to focus on outreach and education through such things as our technical assistance programs, to industry groups out there to brainstorm to try to develop best practices, which I believe may be far more effective in trying to address some of the concerns that we've been talking about today.

I also sincerely believe that the Commission has the opportunity to really be a thought leader in this area because we've heard how many different laws that are out there at the state level, at the federal level, and you have an opportunity to try to bring together the various interest groups, state and federal regulators that are dealing with this particular area.

And as I highlighted in my submission, if you think about it, various states, they of course talk about when and what questions can be asked and even in some cases in various jurisdictions even whether you can consider a person's criminal history. And yet other laws we of course have also heard about, may bar an individual from even being employed because of their criminal history, sometimes for years, sometimes for life. As recently as last Thursday, Governor Quinn in Illinois literally signed into law a bar for life by any health care worker who had been convicted of various sexual offenses. So we have a lot .. you know, we really have some challenges and it really gets complicated. I mean, I'll even use the example of the State of New York where our friend Adam could educate us; and that is, in New York we have no less than four different laws that try to deal with this area. We have the state correction law which prohibits discrimination based on a criminal conviction. We have the state labor law which has certain posting requirements dealing with the correction law. We have the human rights law that prohibits various inquiries regarding arrests, juvenile offenders, and sealed records. And then, of course, we have the New York Fair Credit Reporting Act, which bars criminal background checks unless there's been a conviction. And even then, it bars it after seven years unless someone's making $25,000 or more, and then you can use it.

So what I'm suggesting to all of you is that there is a lot of confusion out there today; a lot of education outreach is needed. As a lawyer, we oftentimes pay the bills by litigating, and the bigger the case, the better. Adam and I have clearly been on the opposite sides of the table in some nationwide litigation over the years, but I do get concerned that, based on the economy we live in today and cost constraints, including our current budget crisis; that there has to be a better way of looking at some of the societal challenges that we're dealing with.

The upshot is that if you take into account the multiplicity of laws and regulations and other legal concerns that we have, as well as take into account President Obama's recent Executive Order; that I suggest that we need to be very cautious about creating a regulatory quagmire. I would urge us and urge the Commission to at least consider focusing on the education outreach rather than trying to focus on more detailed and perhaps more complicated regulations where we already have a challenging issue in terms of dealing with compliance in this really important area. Thank you. CHAIR BERRIEN: Thank you.

Mr. Klein?

MR. KLEIN: Good afternoon and thank you for inviting me to speak today. I'd like to try and not replicate what you've heard. Given the fact that I'm the last speaker, I'll try my best to not duplicate/replicate what others have said.

I also think that my role here as a plaintiff's employee .. employment attorney rather is to sort of provide to you my practical experience in dealing with these issues trying to litigate cases relating to hiring discrimination and use of criminal history records as a screen for employment. And in that context, I have some observations that I think are helpful in terms of framing the issue for the EEOC as it considers updating the guidance on the use of criminal history records as a screen or as an employment selection criteria.

One obvious reality is that since the '80s, since the last meaningful effort to try to address the use of criminal records by the Commission; there's been a sea change event in the form of database systems that are accessible through the Internet. Essentially what's happened over the last 20 or so years is that you can literally go on to Google and plug in "criminal search database" or some iteration of that, and you will get back a plethora of responses, many of which offer cheap and easy.to.obtain records from sources that are hard to fathom. As an example, and this is just me randomly plugging in the search term, "criminal background check," one says, and I won't give it by attribute but it's in my submission, for $19.95 you may buy instant criminal report and, quote, peace of mind, be the detective.

So in some respects .. it's not the majority of the problem, but in some respects this is a function of marketing, it's a function of database companies that have access to millions of records produced by the criminal justice system, the court system, the credit history bureaus and that information is readily available and provided to prospective employers in the guise of providing a more accurate and more meaningful background evaluation of applicants for employment. The problem with that information is that it's messy, inaccurate, incredibly difficult to interpret.

Just as an example, if you were to take a look at some of the rap records or the FBI records relating to criminal records, arrests and conviction records, and you're trying to figure out what they're saying, it is almost impossible. I'll tell you I've looked at these records. Each state, each municipality, the federal government, all have different methodologies for describing the same underlying offenses. In some states, the same conduct is a felony or a misdemeanor. In some states, arrest records relate to, in Pennsylvania as an example, a summary offense, which in fact is not a criminal offense in that state at all, it's functionally a civil penalty. That gets reported to the FBI as a criminal event. And so there's literally no means to account for the accuracy of the information or to make sense of it even for employers. And so what you're left with is access to a database of information that's inaccurate, hard to interpret, and dependent on a particular location that it's coming from in terms of actually understanding what the information purports to represent. And so, and this information is being used by a majority of employers to determine employment suitability.

What isn't being provided by the same database companies is any kind of interpretive guidance on it. There's no data dictionary. There's no explanation, no training in terms of what it is you're supposed to do with this information. They sell it to you, but they don't tell you how to use it, and it has tremendous consequences in terms of applicants' ability to obtain employment.

The other problem in terms of data integrity; and this is all under the same banner, and we've heard testimony earlier today, is that in some instances, the FBI database in particular, will report on arrests where there was a disposition that was sealed; where it's a juvenile record and should not have been disclosed; the person was not committed of an offense; found not guilty by a jury; or more likely received an ACD or some kind of disposition that was not a criminal conviction. So you have an arrest for an offense that looks like a criminal act, but either no disposition, which is a substantial percentage of what is on the FBI database, or the disposition is not a criminal conviction. It's either not a felony or misdemeanor or the person's found not guilty. What happens is that the FBI database picks up on the arrest, but in roughly 40 percent of the situations, doesn't report on the ultimate disposition. And in lots of those contexts, the disposition is, there is no disposition. It literally -- they're .. you can't find out what happened.

And so this information is being produced either to the federal government .. I'll talk about the Census Bureau case .. but in the form of private databases to employers and they're left to wonder or to use this information in a vacuum without any explanation of the problems in terms of data integrity, the problems with disposition information, how to interpret that, what does it mean? These are substantial problems that are facing people who seek employment with some experience or interaction with the criminal justice system. And it is a major problem and I think one of the drivers to why we're here today and also in terms of we see such high unemployment rates with people without any interaction with the criminal justice system.

I'll also say to you, it's very difficult as a private lawyer to litigate these cases. I'll tell you I've tried. I think we've had examples where we succeeded and examples where we haven't. One of the obvious problems is that private employers not subject to OFCCP oversight, are not obligated to maintain applicant data. So as an example, if you get a person who walks in my office and says, "I was denied employment, I think it was because of my race; I'm African.American or Hispanic. I have a criminal record or some interaction with the criminal justice system. I was denied employment based on that basis."

Well how is it that we're supposed to figure this out, as a private firm, as a lawyer representing somebody that potentially has a claim under Title VII? What do we know? They weren't hired because of their criminal record. Well, is that a ban against people with felony convictions? Is it a particularized inquiry? The applicant wouldn't know. Is it a violation of Title VII? We have no applicant data. The employer doesn't really know. They've not done any kind of adverse employment analysis because they don't have the applicant data, and they're not obligated to keep it. It makes it almost impossible to prosecute these cases effectively as a private lawyer, and I'll tell you that quite candidly. And by saying that, what I'm saying to the Commission is that the guidance becomes even more important. The guidance becomes critical in terms of systematizing this process, in terms of understanding how disparate impact analysis works, how violations of Title VII can be detected or not by people that every day don't obtain employment by employers for reasons that seem plausible on their face. Denial based on criminal history record is sort of an ordinary response, not unexpected.

Most applicants probably wouldn't seek an attorney. Most go to non.profit organizations and they're dealt with on an individualized level. That's been my experience now working on the Census case with the non.profit consortium that we've worked with that for the most part .. these are one.off situations. The lawyers at the non.profits will try to help the individual that came through the door without looking at the larger issues, which is understandable because there isn't data and there's really no way to understand whether there's a systemic violation of Title VII.

In terms of what you heard from OPM, and I'll make it quick, Census Bureau, what we heard is not consistent with our experiences in the Census Bureau's case. What we know from litigating the case is that, in fact, most of the applicants; some 3 million applicants for the enumerator position at the Census Bureau during the 2010 decennial census process, were run through an FBI database, 700,000 of whom had some interaction with the criminal justice system that led to an FBI record. At that point, most of those 700,000 received a required .. a requirement rather, a so.called 30.day letter, that they provide the official court documentation of the disposition of whatever it is that led to the FBI database hit, but they weren't told. And it's sort of an Alice in Wonderland experience in the sense that for many, they have no disposition, they weren't actually convicted of anything; it was a juvenile record, it was expunged, it was sealed, it's a closed record state, the records don't exist anymore. They don't tell the applicant what an official court record is or how you would obtain it, certainly not within 30 days. It costs money in most states to get your court records. On it goes.

Ninety.three percent of the 700,000 who got the 30.day letter, washed out of the process. As a practical matter, in reality, most if not all of the applicants who had any exposure or interaction with the criminal justice system, were denied employment to the census process, the million people that were hired, and that's reality. OPM has its regulations, you heard it. What I'm telling you is that the federal government in other respects is in conscious conspicuous violation of Title VII, and this is not a small effect.

And just as a closing point, it's very hard to sue the federal government for Title VII violations. It's a 45.day statute of limitations. Our client walks in, says I wasn't employed because I couldn't produce the official court record of whatever it is. How is that a Title VII violation? In other words, how would anyone know that that equates to a deprivation or a violation of my civil rights under Title VII? And that was the practical problem. It wasn't so much that we the lawyers couldn't figure it out. It was that our clients didn't know they had a claim under Title VII.

So again, back to the .. I think these are the issues that need to be dealt with. Thank you.

CHAIR BERRIEN: Thank you to this entire panel. If I could . . .

Commissioner Ishimaru is yielding, so you'll have the opportunity to ask questions.

COMMISSIONER BARKER: I appreciate it. I appreciate it. Once again this is an informational panel, and you've provided tremendous information to me, but I don't have questions for you. I really appreciate not just your testimony but your detailed testimony that you provided that provided so much information to the Commission and my apologies for having to slip out early.

But I also want to say before I leave that I appreciate not only the panel but everybody who took the time out of their day and found a way to join us today because it's a hassle getting to this location in D.C. and to getting into this building. And this is one of the best public responses we've seen as far as participation today, and I appreciate all of you and your taking the time and your interest in this subject. Thank you.

CHAIR BERRIEN: Thank you. Safe travels.

COMMISSIONER BARKER: Thank you.

CHAIR BERRIEN: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. Mr. Cartagena, it's good to have you here. We quite often don't get a perspective on Hispanic issues. Given the change in demographics in the country, I think it's vital that we do.

You had talked in your testimony about the difficulty in getting data generally about Hispanics, Latinos. I assume too that there is a difficulty in getting disaggregated data for subgroups and that various communities within the Latino community, as in the Asian community, have difficulty when you aggregate all the figures together, and it sometimes may bury information as to what subgroups are experiencing. Can you touch on that and how that affects the Latino community?

MR. CARTAGENA: Definitely. Across the board there is a problem with disaggregating data for Hispanics in virtually every data set that we've approached. On occasion, we are able to use ACS, American Community Survey, data from the United States Bureau of the Census, which now has replaced what we used to call the long form census. There's now an annual survey of about five to six percent of all the households that provides very reliable data across the board. We're able to use that on occasion to talk about issues about employment participation rates, housing issues, and income. But when it comes to the criminal justice side of the equation, there simply is no way to disaggregate the data short of getting permission to do a survey within prison walls.

COMMISSIONER ISHIMARU: Yes.

MR. CARTAGENA: Something which, by the way, I've toyed with. But that being said, it is a very important point to raise because we see the immigration patterns in a kind of living patterns of Latino populations, and we see that in certain parts of the country, where you have major demographic growth of Latinos; you're seeing them coming from certain parts of Central America or Mexico and certain towns oftentimes also almost by definition. You know, Puebla, Mexico is oftentimes seen as the birthplace of many Mexicans who work in New York City, as an example. Once we can disaggregate that, we get a better sense of what is actually causing some of the pressures that lead to the behaviors that eventually end up in the criminal justice system, but unfortunately, we don't have the access.

COMMISSIONER ISHIMARU: Right, and you had talked about the difference between urban versus rural. And I know just from past experiences that sometimes getting this information through the criminal justice system, through the FBI collection mechanisms is difficult, if not impossible.

MR. CARTAGENA: Right.

COMMISSIONER ISHIMARU: And I hope that through the work on the Re.Entry Council, Madam Chair, that that's being looked at. I know our friends at DOJ look at all these things. I hope we can bring about some changes to this so we can get richer data that we can use.

But on data itself, it's one of these problems, as you talked about, Mr. Klein, for these private databases of garbage in/garbage out, and also that once you create a database or that people are using certain databases and that propagates more use of it and it compounds. And you know, I don't know how we get out of that box, frankly. Is it that we regulate the use of these databases? Do you have any suggestions to us on how we should better be looking at this information and how to not propagate unhelpful information?

MR. KLEIN: Right. Well it is a major problem. I think perhaps there are two answers: One is to try to coordinate with the Federal Trade Commission and other aspects of federal government in terms of providing some accuracy measures to the data. In other words, if a company's going to sell information that's being used to determine employment suitability or other purposes; there has to be some measure of accuracy and some measure of accountability for that information. They are knowingly producing or supplying information that's being used in a way that is violating Title VII. And so because there are so many false positives or the information is so inaccurate, it's so hard to interpret that its intended use is very problematic.

The other thing is, again, this is a function of the guidance, I think, in the sense that most applicants who are denied employment based on criminal history are not going to come knock on the door of the EEOC or come knock on the door of a private lawyer. And I can tell you, the private lawyers are going to have a real hard time with that case without data or without an employer that is required to maintain applicant data. And even when they do, oftentimes it's inaccurate, incomplete, and very hard to work with. That's been my practical experience.

COMMISSIONER ISHIMARU: Great. I want to thank the panel, very helpful. And I know we can call on all of you as we figure out where to bring this next.

Thank you Madam Chair.

CHAIR BERRIEN: Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. So I want to stipulate that I agree that education is actually quite important in this area and I don't think that any of the witnesses that we've heard from today, including the ones right here, would disagree.

So my question, Mr. Hartstein, is do you disagree with what the 3rd Circuit said in the SEPTA case to us, that they thought that our guidance needed some help?

MR. HARTSTEIN: Excuse me, again?

COMMISSIONER FELDBLUM: The 3rd Circuit has criticized the EEOC quite explicitly for having guidance that it did not feel was helpful to it when it was dealing with the case. So my question to you is, do you think they were wrong and our guidance is fine?

And then to the other two panelists, if you think they were right, what is it you think we should do?

MR. HARTSTEIN: I mean, I think at the end of the day I'd be the last person to criticize a judge.

(Laughter.)

MR. HARTSTEIN: But putting that aside, what I think you are doing by conducting these types of fact.findings, you've now sat down twice to listen to these sorts of issues and you've sensitized yourself to the issue. And to the extent that you have come to the conclusion that the guidance provided is sound; it does make sense, it does provide the type of flexibility that employers need and, just as importantly, that the employee community needs to deal with these issues because it is so complex. And the more detailed you get, the more likely you're going to screw up without .. using the colloquial phrase, but .. so I think that if .. you're doing exactly what you can and should be doing. And just because you elect, after being thoughtful about the process, to determine that you've done right and these guidelines do provide appropriate direction; then I think you've done your duty and it is appropriate.

COMMISSIONER FELDBLUM: Mr. Klein?

MR. KLEIN: I think the current guidelines are very problematic. As an example, there's no indication of what the weighting is. So the nature and severity of the crime, what does that mean? What are the measurement tools?

Since the time that those guidance have been issued, the idea here is that we need to systematize. We need to have the social science and sort of science.based evaluation process put into place. The use of I-O psychology, SIOP principles. Look at it from the uniform guidance in place, selection procedures. Think of this in a systematic, scientific way. And to think about, as an example, what are the cut scores or what are the measurement tools that are available? Time since conviction, what does that mean? Is that 30 percent, 20 percent? What it's led to is employers going, okay, I'll comply or, you know, here are the three standards, 10 percent, 20 percent or I .. for this week and next week it's .. there's no systematic means to measure and then determine what the proper outcome should be. That's what you're left with with the current guidance.

COMMISSIONER FELDBLUM: Mr. Cartagena?

MR. CARTAGENA: In my testimony, I make a handful of recommendations about what SEPTA can very well lead to, and the El v. SEPTA case I think at a minimum requires employers to document and justify all .. a business necessity analysis with clear, clear articulated reasons for the decisions that they make for employment policies. At a minimum, that's what it requires us to do. But I also raise possibility for the EEOC to consider presumptions. Decisions made on arrests alone, especially arrests that did not lead to convictions, could very well be presumptively illegal, given the impact in certain jurisdictions in the country.

I also think that there's an important thing .. we heard today from OPM and I found that fascinating that the decision point in which the check is made in the federal government system is much later on in the process because it's costly, because it makes sense. Well that's been .. you know, that's part and parcel to some of the state law practices in Massachusetts and other places, in Connecticut. It's almost like .. it's similar to the movement called Ban the Box, right? So we push backwards the point in time in which we make the inquiry, because that would isolate for all purposes that the only reason the applicant's not getting the job is because of the criminal background check. It also avoids any use of pretext. I'm going to not hire individuals of certain racial backgrounds and the pretext is, I'll use criminal histories. Well, we push that backward, and the process will be an easier way to analyze it.

COMMISSIONER FELDBLUM: All right. Thank you. Thank you Madam Chair.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. First of all, I want to stipulate that I think it's a good thing that the professor on our panel is in favor of education, so . . .

Thank you to all of our witnesses for your testimony. Mr. Hartstein, I want to follow up with you on a couple of things that Mr. Klein said. We've heard a lot about, you know, the tremendous horrible impact on people who are trying to get jobs after they've had a conviction. But can you talk a little bit about why, for the many clients that you advise, employers find it useful to use a criminal background check? And then I have a couple other follow.up questions for you.

MR. HARTSTEIN: I mean, I think from my perspective, obviously it wouldn't be appropriate to go into any particular client, but I mean, I really would encourage you to take a look at such things as the SHRM study. I mean, and the SHRM study talks about what are some of the factors and what are the considerations the employers look to? And what they focus on are such things as 61 percent of them to ensure a safe working environment for employees; 55 percent to reduce legal liability for negligent hiring, which we've talked about today; 39 percent talk about to reduce or prevent theft and embezzlement or other criminal activity. Another 20 percent talk about to comply with state laws requiring background checks, such as we know day care teachers, licensed medical practitioners for particular professions. So clearly, you know, those are a good series of examples of why they're doing it.

COMMISSIONER LIPNIC: Well, and then let me ask you this: Given what Mr. Klein said in terms of the problems with inaccurate data, in terms of, you know, researching someone's criminal background; when you have to advise your clients on risk, I mean, that in and of itself is a risk, right, the fact that this may be inaccurate data? So what are you advising your clients as to that aspect, balancing it against what they believe is their risk if they hire someone who potentially has a criminal background?

MR. HARTSTEIN: Well for example, a starting point. And I think an appropriate starting point with a lot of companies that are doing mass hiring, they're actually starting with the applicant and asking that individual. So when you talk about inaccuracy, with all due respect, by asking the applicant, honestly, to say whether or not you did and to say within the body of that application it will not bar you from consideration. But that's probably the best and most accurate way to go about it. And so from that, that clearly is one way.

The second is, when you think about it, we of course have talked about the Fair Credit Reporting Act. To the extent that there are inaccuracies and you're relying on those third parties, individuals have to come forward and they have the opportunity to try to clear things up, so there are opportunities, one from the applicant, and just as importantly .. well really for the applicant themselves to try to clear up the misunderstanding. So I think those are two good examples of how that can be addressed. And I appreciate a lot that Adam said, but I think those are two mechanisms in which we are dealing with it.

COMMISSIONER LIPNIC: And one last question, and this is for all of you: In terms of .. because there's obviously a split on the panel between those who think we should revise our guidance and Mr. Hartstein, who doesn't. And some of the suggestions have been to put in say a time limit, you know, that presumptively if a conviction is seven years old, as many state laws have done; that it should not be taken into consideration in the hiring process. Do each of you think that we have the legal authority to do that, that we would be able to put in that kind of presumption?

MR. KLEIN: Well, let me say this: I think in terms of ..

COMMISSIONER LIPNIC: You have to be fast because it's on the yellow light --

MR. KLEIN: Let me say this: I think there's a more general phenomenon. People age out of crime. So when you talk about time since conviction, what you're really saying is, people got older. And I would caution against looking at the recidivism data and the criminologist in terms of time to .. recidivism rate that mirrors the normal population as sort of the gold standard here. That's a different construct. That's not a construct of disparate impact analysis under the Civil Rights Act of '91 or using SIOP principles. They're not I-O psychologists; they're criminologists. They're talking about .. they're applying something from a completely different sphere. So I think you have to be cautious about being too simplistic and using age as sort of the obvious proxy, as I said because people age out of crime generally.

MR. HARTSTEIN: Adam and I agree on a lot of things. But no, I think that the practical problem that I think we're dealing with is in part some of what I think Adam has said. There are experts out there who are looking in this area, this is an imprecise area. If you look at some of the studies that have been done, what are they focusing on? They've used the best available data, which is focusing on arrest records, not conviction records. So that in itself led to some question. Or if you talk to some of the experts out there, some experts will criticize other experts. So this is very imprecise, it's difficult. And so I think to try to put in a hard bar, I think that's problematic.

On the other hand, where employers have been thoughtful about the process, they've brought in .. they've sat down and tried to come up with something that appears to be done in good faith with good intentions, take into account what I'll call some of the societal issues that we think about and try to make a good faith determination; I think that is something we may want to show some deference to. But I think put it in fine lines, particular years for particular offenses, at least from the standpoint of your Agency would not necessarily be, with all due respect, prudent.

COMMISSIONER LIPNIC: Cartagena?

MR. CARTAGENA: I disagree. I cannot say it any more succinctly, I disagree. The racial impacts of continuing to do what we're continuing to do in this country are stark. They're just too large to ignore. Too many good employees are being knocked out without being given a chance to demonstrate whether or not they merit the position or qualify to maintain their jobs. Yes, something has to happen.

COMMISSIONER LIPNIC: Thank you.

MR. CARTAGENA: And I think you have the authority to do so.

COMMISSIONER LIPNIC: Thank you all very much. Thank you Madam Chair.

CHAIR BERRIEN: Thank you. Mr. Hartstein, you said that you very seldom see employers look at arrest records at this point, and of course our guidance treats arrest records and conviction records differently. Is it accurate to say that you agree that the current approach of treating arrest records as providing much less information that's relevant to the hiring decision is accurate and a best practice in relation to employers?

MR. HARTSTEIN: I mean, I think that .. you know, from what I've seen, I think there's a .. I can't get into the mind of the employers today, but what it certainly seems is that the employers have exercised their judgment, whether it's because they feel that singling someone out because if they're arrested is unfair, and putting aside issues of whether it's legal, illegal, the person is not .. is innocent until proven guilty .. and maybe that's a societal issue. I praise our legal system for doing that, and I think a lot of employers have looked at that as well. There are some limited areas as we know in dealing with jobs, you know, with security and so forth where, of course, for better or worse, even our federal government looks at those issues because they feel they need to. But in general, I think employers have tried to do it the right way, including maybe even looking at your current guidance, but I'm certainly not suggesting the current guidance be changed in any way.

CHAIR BERRIEN: Okay. And Mr. Cartagena, you introduced, but very briefly; and I think perhaps had more to say, the point that what happens with an existing employee who for whatever reason may be subjected to a background check after a period of employment without incident, ought to .. does sometimes present different facts and ought to be considered differently by the Commission. I wanted to ask if there was more you would add. And also to invite the other panelists to speak to how the current guidance addresses that and whether more needs to be done to address this issue?

MR. CARTAGENA: Sure. I'll give you an example. There is a gentleman who came .. I helped represent; whose charge, by the way, is still pending, who was elevated to the position of a supervisor in a pharmacy chain in the New York area. And the pharmacy chain was bought out by another corporation. The background check came back. He had never lied about his history. And then he was terminated with no recognition and no factoring into his previous job performance on all fronts of what he was expected to do in the future. And I think in those kind of situations, the law that we're talking about here and the Title VII concerns are even much more important because we have a history of job performance which should be accounted for as well.

MR. KLEIN: I would agree with that and point out there's such a lack of any kind of systematic approach to this and no accountability measures. Employers don't measure what they purport to do. We've seen examples where policies are on paper and not applied. Individual managers are given complete discretion, there's no accountability measures. A lot of what we're talking about is also a function of employer responsibility to evaluate the practices, to have accountability measures, and to have a systematic approach to these issues. And that's completely lacking, in my experience.

CHAIR BERRIEN: Mr. Hartstein?

MR. HARTSTEIN: We're doing the best we can. I mean, when all is said and done, I think some employers are doing better than others. I think we do have the challenge with small employers. And again, I don't want to harp the issue of education, a lot of small employers are simply uninformed, they don't know. They think, well, if I do things, if I'm consistent, it's okay. We need to correct that. Okay? We have a societal issue dealing with the notion people deserve rehabilitation. This is bigger than all of us. I think all of us should view this as an opportunity to continue to try to educate the public that people can be rehabilitated. I mean, in fact one of the organizations that I've done some work with in Chicago is called, Cabrini Legal Aid. And what they do is, they actually work with individuals who've tried to turn their life around. They go in before the parole board and they're literally able to have their criminal records basically barred and sealed so they can truthfully say they don't have a criminal record, they're not barred from particular types of opportunities for employment. I think we need to come at this from a lot of different angles. That's one of them where the individual themselves can be helped. And we need individuals, including those who are willing to do it pro bono, to help those who have been disenfranchised to be able to get more opportunities for themselves. But it starts there and it goes with employers need to be open minded and then .. you know, but we also have to struggle with that balance. And I think that's what the employer community is continuing to try to do the best they can. Some do it better than others.

CHAIR BERRIEN: Thank you. I will mention just last week I was at one of our technical assistance programs in St. Louis, the previous week at one of our technical assistance programs in Jackson, and I know that my colleagues on the Commission as well, as well as many of our staff participate in our outreach programs. So I certainly echo the earlier remarks of Commissioner Feldblum that we are very personally involved and committed to our education and outreach programs, along with our other enforcement efforts. So certainly the opportunity to address these issues in that forum is not lost either.

I want to thank this entire panel, and really, you have brought to the fore a number of issues of concern and we have been able to learn a great deal from all of you, as well as from all of our panelists.

I want to invite my fellow Commissioners to make brief closing remarks if they have any, Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Well, thank you Madam Chair. I think this was a valuable meeting we had today, difficult issues, complex issues. But I hope the message that comes from this is not that this is a problem that's too hard to handle or too big to handle, and that it may be we handle it in .. not as one piece of guidance, but as multiple pieces of guidance so we can get started because I think Mr. Cartagena is right, that the underlying facts are too stark to ignore, that the disparate impact on certain groups is stunning. And if we want to provide useful guidance to both people whose rights are impacted and employers who may be violating the law; that we need to get updated guidance out. And I think Mr. Hartstein points out that our existing guidance may serve as a model for a piece of this, and I think we need to closely look at that. But I think we need to act, and we need to act quickly, and we don't necessarily have to do it in one bite, because that may be a recipe for not getting anything out for a long time because it's a very difficult issue. So I hope we can make progress and do it soon.

CHAIR BERRIEN: Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Well as I said in the beginning, this is a complicated issue and I think our witnesses in all three panels gave us that sense. It's multifaceted, and therefore the reaction to it has to be that way as well. And so I think I would end with actually a huge plug for the education front, and not only because I'm a professor, but you know, Commissioner Lipnic and I are actually .. we've agreed to basically, you know, hopefully be out on the road next March and April. I actually call it the Rock Tour.

COMMISSIONER ISHIMARU: The what tour?

COMMISSIONER FELDBLUM: The Rock Tour.

COMMISSIONER ISHIMARU: Rock?

COMMISSIONER FELDBLUM: You know, R.O.C.K. I'm like you with the Rs, you know, right? But the Civil Rights Rock Tour, I thought we were just going to be doing ADA, but you know, we could do the highlights of, you know? And I think we do have an obligation to be out there and explaining to folks what the civil rights law requires in lots of areas. And that's completely separate and distinct from whether there's also work we need to do to get our guidance to be better.

So the other thing, Commissioner Lipnic and I have talked about this at various points, and "fraught" is the term we've used each time. Just because something is fraught doesn't mean we get to walk away from it. It just means we should be dealing with it very well and very carefully and very thoughtfully. And that's our obligation for those of us who are sitting here. So thank you.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. I'll just second the comments of my colleagues, and many thanks to all of our panels of witnesses. This has been an incredibly helpful and educational hearing and on a very, very difficult topic. And I look forward to whatever we do going forward and the thoughtful and serious engagement that that will take on the part of, quite honestly, not everyone on this Commission, but everyone who is in this room and has an interest in this topic. Thank you very much.

CHAIR BERRIEN: Commissioner Lipnic, your comment is actually a great segue to how I would like to sum up. This Commission is not alone in our concern about this issue or our engagement in the re.entry discussion, and given the magnitude of the challenge that we heard about today, I'm grateful for that.

Secretary Hilda Solis recently convened an interagency forum on this issue. As you heard from Amy Solomon today, Attorney General Holder has convened the Re.Entry Council consisting of Cabinet.level and agency leadership from across the federal government to address this issue, and the EEOC has participated in that discussion.

But equally importantly, we are working alongside and we are going to address this issue in a context where there is a diverse and robust community of private sector stakeholders, and significantly, state and local government offices and agencies that are equally interested in these issues and that recognize that our guidance plays a role, and particularly that our guidance on the application of Title VII to employers' consideration of criminal arrest and conviction records plays a role in this context.

I am immensely grateful to all of the witnesses we heard from today who prepared extensively, who have provided us with some very, very thoughtful information, both written statements and your testimony in person today to the Commission.

And I also note, as some of my fellow Commissioners have, that we have a large audience, members of the public, people representing other government agencies, people representing parts of the stakeholder community, people who are simply interested in being present today. And that is a source of .. I think that is important as well, and we appreciate your interest, your attention and your attendance in this meeting as well.

I am looking forward to working with all of my colleagues on the Commission, to the colleagues here in the Agency, and to the EEOC stakeholder community on these issues in coming months.

I want to remind everyone that the record will be held open for 15 days for receipt of public comments, and those comments may be mailed to this address: Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C., 20507. Or they can be emailed to commissionmeetingcomments, and that's all one word, @eeoc.gov.

If there's no further business, is there a motion to adjourn?

COMMISSIONER ISHIMARU: So moved.

CHAIR BERRIEN: Second?

COMMISSIONER FELDBLUM: Second.

CHAIR BERRIEN: All in favor?

ALL: Aye.

CHAIR BERRIEN: Opposed?

(No audible response.)

CHAIR BERRIEN: Ayes have it. The meeting is adjourned. Thank you.

(Whereupon, the above.entitled matter went off the record at 1:30 p.m.)