Written Testimony of Adam Klein Partner Outten & Golden LLP

Meeting of July 26, 2011 – EEOC to Examine Arrest and Conviction Records as a Hiring Barrier

Computer-Database Background Investigations, Criminal Records, and Hiring Discrimination

Employers increasingly rely on computer-database background investigations as an employee selection tool. According to a 2010 survey by the Society of Human Resources Management, 92 percent of their corporate members perform criminal background checks on some or all of their job applicants.1 By way of example, Wal-Mart, the nation's largest private employer, conducts criminal record checks on all applicants for employment to its U.S. stores.2 This practice is not limited to large corporations; small companies also routinely conduct criminal record checks and deny applicants gainful employment based on the results of these checks.3

Assisting this widespread practice is a cottage industry of data-collection agencies that provide inexpensive (and often inaccurate or difficult to interpret) background information to prospective employers. In addition to arrest and conviction records, several data-collection agencies also market and sell a retail-theft contributory database that is used by prospective employers to screen applicants. According to promotional materials from LexisNexis, one of these service providers, the retail-theft database assists "employers [to] quickly identify applicants with a history of theft and/or fraud before a hiring decision is made."4 One provider claims that 75,000 retailers, including Home Depot, CVS, Walgreens, and Target, utilize the retail-theft database for making hiring decisions.

At the same time that prospective employers are increasing their reliance on criminal background checks, the number of persons with criminal records in the U.S. has grown to over one in four adults.5 An estimated 65 million American adults6 who have criminal records are affected by this screening process, a disproportionate number of which are African Americans and Latinos because they are overrepresented in the criminal justice system.7 From the federal. Bureau of Justice Statistics, we know that African Americans represent 28.3 percent of all arrests in the U.S., although they represent only 12.9 percent of the population.8 Moreover, most arrests that appear on criminal background checks are for minor crimes and non-criminal offenses such as curfew and loitering violations, vagrancy, and disorderly conduct.9 African Americans are as much as 15 times more likely than whites to be arrested for low-level offenses.10 While less than 20% of the arrests of African Americans for these offenses result in convictions, they will show up on a "routine" criminal background check.

Many who are flagged in these databases have never been convicted of a crime—in fact, one-third of felony arrests never lead to conviction.11 Worse still, criminal records can contain inaccuracies that are routinely reflected in criminal background checks. One study of the F.B.I.'s database found that out of 10,000 hits, 5.5 percent were falsely attributed to individuals who had not been convicted of a crime.12 State records likely contain similar inaccuracies because there is no standardized process for reporting arrests and disposition at the state and local level.13 Finally, much of what gets reported to prospective employers is cryptic or requires specialized knowledge that is specific to each state or municipality. Some reported offenses are not actually violations of the criminal code in the reported state – but may still appear on the F.B.I. or third-party databases.

Most of this information should be familiar to the Commission. In 1987, the EEOC drafted a policy on conviction records recognizing that screening people from employment based on criminal records disproportionately excludes certain racial minorities.14 During the intervening years, employers have increasingly relied on computerized information from the background-check industry to make hiring decisions. The background-check industry offers inexpensive access to instant criminal records. This is the first page of sponsored ads from a Google search using "criminal background check" as the search terms:

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Unfortunately, there are few regulations governing the use of background information beyond the reporting requirements of the Fair Credit Reporting Act ("FRCA"). Notably, the Federal Trade Commission ("FTC") does not require that database companies provide information to end users on how to properly interpret criminal history reports or what basic standards should be used as part of the hiring process.

This problem is not isolated to private employers. For example, the United States Census Bureau (the "Census Bureau") hired over one million temporary workers to conduct the 2010 census in a manner which appears to have unlawfully denied employment to over one-hundred thousand African American, Latino, and Native American applicants based on criminal history information in violation of Title VII. As a precondition of employment for the 2010 decennial census, the Census Bureau required nearly all job applicants who have ever been arrested to produce within 30 days the "official court documentation" for any and all of their arrests – regardless of whether a conviction resulted, the nature of the arrest, its relationship to the job, or when it took place. This requirement eliminated 93% of these applicants – roughly 700,000 people – from being considered for employment during the 2010 census. A class-action lawsuit challenging the Census Bureau's hiring practices is pending in federal court in the Southern District of New York. The lawsuit was filed by my firm together with a consortium of public- interest organizations including the Lawyers' Committee for Civil Rights Under Law and Community Legal Services of Philadelphia.15

Recommendations to the Commission on the Use of Criminal Background Checks

The goal of the EEOC should be to issue guidance that instructs employers to limit the consideration of applicants' criminal history to circumstances where a business necessity demands scrutinizing applicants' backgrounds—while protecting against arbitrary and discriminatory practices that have proliferated with the growth of background checks. In many instances, especially entry-level jobs, criminal records should be presumptively irrelevant. More generally, employers should be required to make a detailed inquiry and consider any rehabilitation or good conduct since the offense.

New York's experience with this issue is instructive. Article 23-A of the New York Correction Law prohibits employers from denying an applicant employment because the applicant was previously convicted of one or more criminal offenses. There are a few areas of employment where Article 23-A does not apply, such as job positions in any law enforcement agency. Otherwise, all private employers with ten employees or more are subject to this law. There are only two exceptions under Article 23-A where employment may be denied based on an applicant's past criminal convictions.

  • First, employment may be denied if there is a direct relationship between the criminal offense committed and the employment sought. A "direct relationship" exists if the nature of the criminal conduct directly bears on the fitness or ability of the applicant to perform the duties or responsibilities of the job.
  • Second, employment may be denied if the applicant would pose an unreasonable risk to property or the safety or welfare of others. This includes a risk to specific individuals or the general public.

Article 23-A requires that employers consider several factors in determining whether an applicant may be denied employment based on past criminal convictions. The employer must consider:

  • The state's public policy of encouraging the employment of individuals previously convicted of criminal offenses.
  • The duties and responsibilities related to the job sought.
  • What bearing, if any, the criminal offense or offenses for which the applicant was convicted has on the applicant's fitness or ability to perform these duties or responsibilities.
  • The amount of time that has elapsed since the occurrence of the criminal offense or offenses. This refers to how long it has been since the applicant committed the offense, not how long it has been since the applicant was convicted. In some instances, the date of the conviction may be years after the applicant actually committed the offense.
  • The applicant's age at the time of the criminal offense or offenses.
  • The seriousness of the offense or offenses.
  • Any information produced by the applicant, or on the applicant's behalf, regarding his or her rehabilitation and good conduct.
  • The interest in protecting property, and the safety and welfare of specific individuals or the general public.

Also, if the applicant has been issued a certificate of relief from disabilities or a certificate of good conduct, the employer must take that into consideration. The certificate creates a presumption of rehabilitation, meaning that the employer must take it as evidence that the applicant has been rehabilitated.16 To my knowledge, employers within New York State are complying with the requirements of Article 23-A.

The EEOC should also consider the comprehensive recommendations put forth by the National Employment Law Project ("NELP") in their recent report on the effect of criminal background checks on employment.17 Below are a few recommendations to add or highlight:

1. Commission Study to Examine Effects of Proliferation of Criminal Background Checks for Employment on Communities of Color.

The proliferation and use of criminal background checks must be studied by experts in the field of industrial/organizational psychology in order for us to better understand the impact this practice has on communities of color in the U.S. Current literature and research study have been thus far limited, but with collaboration with the EEOC, further research can help us understand whether employment bans on people with criminal records are correlated to substantiated risk and whether a criminal record alone is an adequate measure of an individual's security threat in the workplace. Consequently, more studies should be commissioned to study the effect that such screening and employment bans have on applicants, including racial minorities.

2. Update the EEOC Guidance on Criminal Background Checks.

The existing EEOC guidance on conviction records is now twenty years old and in need of updating – particularly given the intervening proliferation of "instant" computerized background information now commonly used by employers. In my view, the EEOC should update the guidance referencing the latest research on the disproportionate effect criminal background checks have on applicants of color and confirm that the use of all background information – including notably criminal history information - must be in conformity with the requirements of the Uniform Guidelines on Employee Selection Procedures. Any new guidance should be a robust attempt to respond to current developments and promote model employer policies and worker protections. The new guidance should also address the use of arrest records and third-party databases – such as the retail-theft contributory databases – that are utilized by prospective employers as part of the hiring process.

3. Coordinating Enforcement and Education with Other Federal Agencies.

To effectively curb the abusive effect criminal background checks have on applicants, the EEOC should prioritize this issue through effectively identifying criminal records cases when they come to the local offices and thoroughly investigating them. Coordination amongst the federal agencies (including the FTC and the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP")) would assist the effective prosecution of these important cases. The EEOC should also consider focusing their enforcement on the nation's largest employers that maintain overbroad criminal background checks, as well as private screening companies and staffing firms that design and implement criminal background checks for most large employers. Lastly, the EEOC should consider partnering with other federal agencies to launch a comprehensive education campaign on criminal background checks in both the private and public sectors that gives direction to local offices on how this practice impacts communities of color hardest hit by this overbroad and growing practice.

Footnotes

1 See Society for Human Resources Management, Background Checking: Conducting Criminal Background Checks (Jan. 22, 2010), at 3 (available at http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx).

2 Ann Zimmerman and Kortney Stringer, "As Background Checks Proliferate, Ex-Cons Face a Lock On Jobs, The Wall Street Journal (Aug. 26, 2004).

3 See National Employment Law Project, "65 Million 'Need Not Apply': The Case for Reforming Criminal Background Checks for Employment," at 1 ("NELP Report") (available at http://www.nelp.org/page// SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1).

4 http://www.lexisnexis.com/risk/solutions/retail-theft-contributory-database.aspx.

5 See NELP Report at 1.

6 See id. at 3.

7 The National Council on Crime and Delinquency recently released an analysis of data on disproportionate minority contact ("DMC") in arrests, court processing and sentencing, new admissions, and ongoing populations in prison and jails, probation and parole, capital punishment, and recidivism. The Council concluded that "[a]t each of these stages, persons of color, particularly African Americans, are more likely to receive less favorable results than their White counterparts," and that Latinos also are over-represented relative to whites. C. Hartney & L. Vuong, Created Equal: Racial and Ethnic Disparities in the U.S. Criminal Justice System (National Council on Crime and Delinquency, March 2009).

8 U.S. Dept. of Justice, Federal Bureau of Investigation, Crime in the United States, 2009, at Table 43.

9 In 2008 in New York State, more than 87 percent of adult convictions were for misdemeanors or petty offenses. (N.Y. Division of Criminal Justice Services (DCJS), Dispositions of Adult Arrests by County and Region (6/18/2009). Nationwide, only 4.2 percent of the 14 million annual adult arrests resulted in charges for violent crimes. Crime in the United States 2007 (FBI, Sept. 2008).

10 For example, from 1997 to 2006, the New York City Police Department arrested, charged with misdemeanors, and jailed more than 353,000 people for possessing small amounts of marijuana. U.S. Government surveys have consistently found that Whites use marijuana at higher rates than African Americans. Yet, African Americans constituted 52% of the arrests (while accounting for only 26% of the city's population). Relative to white arrest rates for marijuana, the arrest rate of African Americans is five times greater and the arrest rate of Latinos is nearly three times greater. H. Levine & P. Small, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City, 1997 – 2007 (New York Civil Liberties Union, April 2008).

11 See U.S. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2004 (April 2008).

12 "Study Finds FBI Criminal Database Search Ineffective for Employment Background Checks," Carolina NewsWire, (Aug. 26, 2005), available at http://carolinanewswire.com/news/News.cgi?database=topstories.db&command=viewone&id=3277&op=t.

13 Letter from Michael Shankey, Chief Executive Officer, BRB Publications, Inc., to Richard Hertling, Deputy Assistant Attorney General, Office of Legal Policy (June 27, 2005) available at http://www.usdoj.gov/olp/pdf/hertling.pdf.

14 See The US Equal Employment Opportunity Commission, Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq. (1982), Feb. 4, 1987.

15 Johnson et al v. Locke, 10 Civ. 3105 (S.D.N.Y.). In writing about the Census lawsuit, The New York Times editorial page noted that "[o]fficial court records are often unobtainable for the millions of people whose convictions have been sealed or expunged or for people who have been arrested and released because of lack of evidence or mistaken arrest. This problem falls heaviest on black and Hispanic communities where stop-and-frisk policies and indiscriminate arrests are common. The hiring problem is not limited to the Census Bureau. After 9/11, Congress required port workers to undergo F.B.I. background checks to keep their jobs. Last year, a study by the National Employment Law Project, an advocacy group for workers, found that the government had mistakenly denied credentials to tens of thousands of those workers. States and cities are wisely revising employment policies. The federal government needs to develop a fair and transparent screening system for job applicants and a more effective appeals process. Congress must also require the F.B.I. to verify the criminal records — and find missing data before issuing background checks." http://www.nytimes.com/2010/04/21/opinion/21wed2.html?ref=opinion. By contrast, according to the background-check policy of the U.S. Postal Service: "No inquiries may be made, either orally or in writing, of the applicant or of any other person, concerning arrest records, except where the arrest resulted in a criminal conviction, or where the charges are still pending." United States Postal Service, Employment and Placement Handbook EL-312, Sept. 2001, Updated with Postal Bulletin Revisions Through October 25, 2007, p. 108.

16 http://www.hirenetwork.org/crim_back_check.html.

17 See NELP Report at 19-25.