Author: Jessie Warner, Staff Attorney, National Employment Law Project (“NELP”)

Even as a community-based lawyer, I started with the legal barrier; a claim of employment discrimination cannot be brought if it occurred more than 300 days ago. The denial that stings him the most happened 302 days ago, but there are more to choose from. His frustration poured over the line as he recounted the different employers that had turned him down in the past 302 days. As a thirty-something, African American male with a criminal record (*), he’s applied at so many places, including one place five times…he knows they are hiring and he cannot help, but ask “why aren’t they hiring me.” As he recounts the litany of times he has applied and been honest about having a criminal history, only to be turned down, I wait. I’m listening and I know he’s speaking truth.

His work experience, driving record and licenses qualify him for the jobs he’s applying for, but race is often a factor in employment decisions and when compounded by a criminal record, race is amplified. As an African American male in his early thirties with a criminal record he knows first hand what a study by Princeton Associate Professor of Sociology Devah Pager shows with convincing, evidence-based research. (**)

Pager’s study involved two pairs of college students, two white applicants and two African American applicants, who acted as testers. Each pair had nearly identical resumes except that one of the resumes included information indicating a drug conviction and one-year of incarceration. Each pair applied for the same entry level jobs (***), taking turns representing the applicant with a criminal record, and the study measured the initial call-back rate.

The results demonstrate the impact that a criminal record has on employment prospects, but more strikingly showed that the race of the applicant mattered even more than the criminal record. (****) While thirty-four percent of white applicants without a criminal record received a call-back; only seventeen percent of white applicants with a criminal record did. The study showed that an African American applicant without a criminal record was less likely to receive a call-back than a white applicant with a criminal record. Fourteen percent of African American applicants without a criminal record received a call-back and only five percent of African American applicants with a criminal record were called back.

Pager’s study strengthens the premise of the disparate impact race discrimination claims, under Title VII of the Civil Rights Act of 1964, that have been recognized by the U.S. Equal Employment Opportunity Commission (EEOC) since the 1970s. The Commission has concluded that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on [African American and Latino workers] in light of statistics showing that they are convicted at a disproportionately higher rate than their representation in the population.” (*****) Employers cannot utilize policies that automatically bar applicants from employment because of their criminal record. Instead, employers are required to do an individualized assessment; taking into account whether or not the conviction is related to the specific duties of the position and how long ago the conviction occurred. Many employers have policies that bar hiring of an applicant with any felony, or in many cases even a minor misdemeanor conviction, regardless of how long ago the conviction occurred.

The National Employment Law Project’s Second Chance Labor Project launched a Title VII Enforcement Initiative on behalf of people with criminal histories from our Oakland office this year. We are providing phone advice and also helping clients with meritorious claims file charges with the EEOC based on the EEOC’s standards that apply to hiring decisions based on criminal background information. In addition to obtaining individual relief for clients, the Initiative’s goals include changing employer hiring practices in order to get more people, of all races, with criminal records jobs.

Working in partnership with community organizers, NELP also provides technical support to cities and counties in California and throughout the U.S. who want to “Ban the Box,” as another way to reduce discrimination in employer hiring practices. The “Ban the Box” campaign was started by All of Us or None, a national organizing initiative of prisoners, and people with conviction histories that combats the many forms of discrimination that result from convictions. Banning the “box” involves removing the question that asks, “Have you ever been convicted…” and waiting for later in the hiring process, if at all, to do a criminal background check. The urban areas most impacted by the record numbers of people with a criminal record now struggling to find work and contribute to their communities are leading the way. Notably, the cities of San Francisco, Boston, Chicago, Minneapolis, Baltimore, and urban counties such as Alameda (Oakland area); Multnomah (Portland area); and Travis (Austin area) have changed their hiring practices to view applicants on their merits first, before looking at his or her criminal background.

NELP’s Title VII enforcement practice in California is just getting under way and joins legal services advocates all over the country working to provide remedies for employment discrimination based on criminal records. NELP is part of a coordinated legal strategy that is key to ensuring case law in this developing practice area is favorable. Contact Jessie Warner at 510-663-5707 or jwarner ‘at’ nelp ‘dot’ org with any questions about criminal record-based Title VII claims or how to “Ban the Box” in your community.

For more information:

“The Legal Outline of Authorities and Decisions Related to Criminal Records and Employment” prepared by Community Legal Services & the National Employment Law Project (June 2006).

“Enforcing the Title VII Standards that Relate to People with Criminal Records”
PowerPoint Presentation prepared for EEOC Enforcement Staff (March 2008).

Notes:

(*) According to the Pew Center on the States study “One in 100: Behind Bars in America 2008,” one in nine African American men between the ages of 20 and 34 are behind bars. My client has never been to prison, but his criminal record is stigma enough.

(**) Pager, Devah, The Mark of a Criminal Record, AJS Volume 108 Number 5 (March 2003); 937-75.

(***) The African American pair applied for the same 200 jobs and the white pair applied for a different set of 150 similar positions. The African American and white testers did not apply for the same positions. The low call-back rate for the African American testers required them to apply for more positions.

(****) If you were a white applicant with a criminal record your chances of being called back decreased by fifty percent, while African American applicants with a criminal record were a third as likely to receive a call back.

(*****) EEOC Policy Statement on the Issue of Conviction Records (issued 2/4/87)