“It is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion of jury service — are suddenly legal … . We have not ended racial caste in America, we merely redesigned it.” —Michelle Alexander, ‘The New Jim Crow’
Latinos and African-Americans involved in the criminal justice system — from arrests that led nowhere to serving time — are often denied for jobs when employers commit a crime under what the ’64 Civil Rights Act calls “disparate impact”
By Maurico Pena
Back in 2010, Precious Daniels kept seeing ads on buses and the Internet seeking to fill temp summer positions for the U.S. Census.
The 39-year-old black Detroiter was between jobs, so she figured she would apply — for the work and the opportunity to help the federal government figure out how to spend tax dollars, one of the main goals of the decennial census. Looking at the state of her beleaguered city, she often felt money was misallocated, anyway.
“There was a struggle for tax dollars for citizens who really needed it,” recalls Daniels, who called an 800 number, scheduled her test and filled out an application right away.
A few weeks after the test, Daniels got a letter stating her background check yielded a positive ID for a criminal record. The letter gave Daniels 30 days to provide fingerprints or court documentation. She did.
Daniels, indeed, has an arrest record: A year prior, on Nov. 4, 2009, Daniels says was arrested on a misdemeanor charge of disturbing the peace, while advocating for national health care reform during a protest at Blue Cross Blue Shield of Michigan in downtown Detroit. However, Daniels was never formally charged. So after submitting fingerprints, Daniels got a rejection letter.
She ripped up the letter.
“I was angry and really confused,” Daniels says.
Although Daniels was never formally charged she knew of people who had misdemeanor convictions and were able “to get jobs with other branches of the government without a misdemeanor holding them back.” If her hunch was true, Daniels could unknowingly be affected by “disparate impact,” a measurement used by those enforcing the Civil Rights Act of 1964 to protect women, racial and ethnic minorities and people of faith and different national origins in access to — and at — work.
Similarly, then-Harvard student Ignacio Riesco, a Latino applicant, sought a summer job with the U.S. Census Bureau in Boston. He submitted his application, took the written test and scored a 93. The high-scorer was told by Census officials his additional language skills, Spanish and Portuguese, were “languages they needed.”
A few weeks later, like Daniels, Riesco got a 30-day letter identifying a positive result in his criminal background check.
“The letter didn’t explain exactly what I had to do,” says Riesco. “It just said there was a positive result on my background check. The only thing I could think of was the arrest, but even that did not make sense because I had not been convicted and the charges had been dropped.”
Riesco tried to figure out exactly what census officials needed: “I called them back and forth. It was difficult to get an answer,” says Riesco, noting with each call, he got a different answer.
Within days, Riesco, 33, submitted a deposition showing the February 2006 arrest and that resulting charges for larceny and scheming to defraud had been dropped in June of the same year.
Riesco says he never got a complete answer.
“It did scare me,” Riesco says. “I never thought that this was going to hurt me, and it hasn’t so far in any other scenarios, so the idea that an arrest that never turned out to be a conviction could somehow come up and ruin my chances of employment. I did worry.
“I felt uneasy that I could be punished for a crime I did not commit, for a crime I was not convicted for,” he says.
Daniels and Riesco are among more than 450,000 applicants in a 2010 class-action suit (Houser et al v. Pritzker), claiming the U.S. Census Bureau’s screening process was racially discriminatory, weeding out applicants by using criminal background checks that included arrests not leading to convictions, as well as misdemeanor and felony convictions. Although on its face, the screening practice is racially neutral, because of the racial and ethnic disparities in arrest and conviction rates for African-Americans and Latinos, in practice, these candidates were disproportionately eliminated from consideration.
The lawsuit alleges the 30-day letter and follow-up process had a disparate impact on African-American and Latino applicants because of the disproportionate interactions these groups have with the criminal justice system.
On July 1, New York-based U.S. Magistrate Judge Frank Maas granted class certification for African-American class members but fell short of certifying the Latino members in the 2010 suit filed by Outten & Golden LLP, with other nonprofit and civil rights organizations.
“There are about 250,000 African-American class members who were currently recognized as part of the class,” says Sally Abrahamson, a lawyer at Outten & Golden, who notes this is an “enormous case” with about 500,000 people who could be added to the class action if Latinos successfully join the suit.
When a door closes, another … stays closed
According to the suit, Census Bureau screening practices created employment barriers that violated Title VII of the 1964 Civil Rights Act. Under Title VII, the act prohibits employment discrimination based on race, sex, color, religion and national origin. The lawsuit alleges the hiring practices employed by the Census Bureau fell more harshly on African-American and Latino applicants.
As part of the hiring process, after job seekers submitted applications and took a written test, the bureau conducted FBI criminal background checks. Applicants whose background checks returned a criminal history were mailed a letter requiring “official court documentation or fingerprints to dispute any arrest and/or convictions” within 30 days.
Then the bureau followed up to determine employment eligibility. However, the lengthy process eliminated eligible applicants because once cleared, the temporary jobs were filled.
The lawsuit states that the process did not even consider the “deposition of the applicants’ cases, the amount of time that had passed since the offense and the nature of the applicants’ offenses and whether the position the applicant sought involved interaction with the public.”
“I believe a lot of people were surprised,” says Brendan Lynch, a staff attorney at Community Legal Services of Philadelphia. “I know the Census Bureau were looking at people’s criminal records in ways they had not before.”
Turns out, a lot of people were complaining they were rejected for a census position, although their criminal records would not have prevented them from completing the job task of a census worker such as conducting a door-to-door surveys, phone surveys or data collection, Lynch says.
“We were seeing people whose record predated the last census for which they worked,” Lynch says. “If they were working for the census in 2000, why on earth would there be a problem with it 10 years later?”
Prior to the lawsuit filing, Stuart Ishimaru, then acting chairman of the Equal Employment Opportunity Commission, submitted a letter to U.S. Department of Commerce and the Census Bureau on July 10, 2009, alerting the agencies that their hiring practices were “overbroad and may run afoul of Title VII of the Civil Rights Act of 1964.”
The letter particularly identified a portion of the 2010 Census application stating: “If you have had a conviction of a violation of the law since age 18 for something other than a minor traffic violation, it could be the basis for non-selection.”
When asked about the 30-day letter and specifics of the case, Census Bureau officials, via email, declined to comment on pending litigation.
Hunting a more subtle bias
Make no mistake, the New York judge’s decision to grant class status is a big deal, according to those who follow disparate impact cases. The suit opens the door for other disparate impact suits, while shedding light on long-debated discriminatory practices, such as unlawful background checks for people with criminal records.
“Everyone knows what disparate treatment is; it’s intentional discrimination on the basis of race, national origin, sex or a protected characteristic,” says Michael Kirkpatrick, formerly of the Public Citizen Litigation Group where he worked on Houser v. Pritzker in its early stages. “Everyone knows what that is when they see it.
For the most part, companies have moved past the forms of overt discrimination, not hiring someone because of the color of their skin, sex or national origin, Kirkpatrick says.
“But there’s another form of discrimination, which is more subtle and more structural, but it creates extreme problems for people in protected groups — and that’s disparate impact,” says Kirkpatrick, who notes while employers don’t mean to intentionally discriminate, patterns emerge to work as a barrier to employment for certain groups. “So where essentially you have a rule or test, a minimum qualification, it disproportionately eliminates minority candidates for the job.”
In the precedent-setting disparate impact case, Griggs v. Duke Power Co. (1971), plaintiffs alleged the hiring practices by the Duke Power Co. disproportionately blocked African-Americans from being hired or getting promotions. Before the Civil Rights Act of 1964, the North Carolina-based company overtly discriminated against African-Americans, limiting them to jobs as laborers.
After the law passed, Duke Power changed its hiring practices, requiring applicants to have high school diplomas and satisfactory scores on IQ tests. These requirements, too, created barriers, the Griggs suit said, and was in violation of Title VII of the ’64 law.
The U.S. Supreme Court acknowledged that because of segregation, blacks had gotten a substandard education, so the test created a disparate impact on African-American communities. The court established the principle of “business necessity,” where a discriminatory result in hiring had to be job-related. The court said Duke Power’s IQ tests did not measure any job-related skill at all.
Attempt to regulate workplace discrimination
Title VII of the ’64 act aimed to eliminate workplace bias by prohibiting employers from discriminating based on race, sex, color, religion and national origin. The act created the EEOC to enforce the law, allowing citizens to file complaints for alleged discriminatory practices.
“Title VII was written in very general terms,” says Marcia McCormick, a law professor at Saint Louis University Law School who specializes in labor, gender and the federal courts. “It says it is a violation to discriminate against on the basis of race, sex, national origin, color or religion but doesn’t define what discrimination is.”
McCormick continues: “It sort of gives some examples of refusing to hire, discharging, classifying, segregating, those kinds of things but it’s not an exhaustive list.”
In 2012, the EEOC issued the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions,” insisting employers weigh several factors for people with criminal records.
“The guidance tries to define the terms a little bit, give some examples when Title VII will be violated and when it won’t be violated,” McCormick says of the policy clarification that acts as a stern suggestion.
The EEOC’s work is twofold. In the private sector, the EEOC serves as an investigator looking into claims to determine whether Title VII was violated. But it also serves as a judicial body, defining what discrimination is in the federal sector.
Although the guidance itself is nonbinding, the courts consider the policy to be a “persuasive interpretation of the law,” McCormick says. “ The EEOC makes it particularly clear this guidance is based on federal court decisions of when it’s OK and when it’s not OK to consider criminal records in the hiring process and what special safeguards an employer should put in place in order to not violate Title VII.”
EEOC spokesman Joseph Olivares says: “Currently, the EEOC does not have authority to ban or force an employer to hire someone with a criminal record. It is the use of the information that might constitute an illegal employment decision, in the form of disparate treatment and disparate impact.”
In 2010, the U.S. Bureau of Justice Statistics released its Prison Inmates at Midyear 2009 statistical tables. Accordingly, African-Americans made up 40 percent of the prison population but less than13 percent of the United States population. Latinos made up 21 percent of the prison population while making up 17 percent of the United States population.
As argued in Houser v. Pritzker, because of these ethnic and racial disparities in arrests and convictions, the background checks and 30-day letter practice disproportionately barred African-American and Latinos from temporary positions with the agency.
As part of the guidance, if a person with a criminal record is eliminated from consideration, the employer must prove the criminal conviction would have interfered with business necessity: the relationship between the job sought and the criminal record or criminal conviction.
“Businesses have a burden to prove that it is a business necessity if they are going to bar someone for an arrest or conviction, especially an arrest, says Outten & Golden’s Abrahamson.
Policing strategies adopted after the federal government’s declaration of the “war on drugs” in 1971 have resulted in a disproportionate number of minorities, particularly African-Americans and Latinos, who have come in contact with the criminal justice system.
The 1986 Anti-Drug Abuse Act introduced sentencing disparities for crack cocaine versus powder cocaine. People convicted for cases involving 5 grams of crack cocaine or more got the same five-year mandatory sentence as those associated with 500 grams or more of powder cocaine, a 100 to 1 ratio. African-Americans made up 85 percent of crack cocaine arrests, but only 13 percent of the American population.
“One in three African–American men will be convicted of some crime at some point in his life,” McCormick says, who has 21 years of experience in civil rights and constitutional law. “That means 33 percent of African–American men will be unemployable; that’s a huge impact on those men and the African–American community more broadly. Similarly, for Latinos, the most recent numbers I’ve seen are one in six: 16 percent of Latino men will be unemployable.”
This wildly unbalanced conviction rate among blacks and Latinos fosters stereotypes to the extent employers generally makes assumptions based on race and national origin, instead of an actual convictions.
“Title VII is relatively narrow,” McCormick says. “It really only protects based on identity characteristics. But, she says, there are so many things linked to identity, so it’s easy for people to say conviction is not at all related to person of color because as an analytical matter it’s not: In a practical matter it turns out it is.
“The fact that Title VII only deals with employment makes it more complicated, too, because really discrimination or disparity in income, wealth, employability, job success are not just linked to decisions by employers but also to disparity in police practices, disparity in judicial practices, disparities to access to wealth, which is related to housing discrimination and education.
“So the fact that education, employment, housing and everything is all interrelated makes it very difficult for one part of the statute to really make a tangible change.”
Ban the box efforts grow
With 700,000 people being released from prison every year and more than 70 million people with criminal records, exclusionary hiring policies and practices against people with criminal records make it difficult for returning citizens to find jobs, despite the law, according to Michelle Rodriguez at the New York-based National Employment Law Project, also known as NELP.
“Employment discrimination against people with criminal records results in lifelong collateral consequences,” says Rodriguez, senior staff attorney at the organization that works to remove unfair barriers to work. . “There’s statistical evidence that shows employment is significant in reducing chances of reoffending,”
State-level legislation known as “ban the box” that stops employers from asking about an applicant’s criminal history until final stages of hiring, is being enforced in 13 states, including Hawaii, New Mexico, Colorado and 70 cities.
“Some of the opposition, we hear in different cities or counties is, ‘We don’t want you to tell us how to do our process,’ ” Rodriguez says. “In the private sector, similar arguments have been made, but some outright say, they don’t want to hire people with records. The stereotype and stigma is carried with them for years after time is served.”
Although Elizabeth Milito, senior executive counsel at the National Federation of Independent Business in Nashville, Tennessee, advises businesses to follow the EEOC 2012 guidance, she doesn’t think “ban the box” is good “policy for all businesses and industries.”
Smaller businesses “should be able to know sooner rather than later whether someone has a conviction,” Milito says. “Not knowing upfront wastes time and resources of these businesses with no human resource departments.”
On July 1, California’s “ban the box” law went into effect, prohibiting state and local agencies from asking about convictions until applicants meet minimum job requirements. The law aims to thwart potential reoffenders by giving ex-cons a chance to find and keep gainful employment, and it builds on existing state law prohibiting public and private employers from asking applicants about arrests that didn’t lead to a conviction.
Most recently, Illinois passed “ban the box” for private employers and employment agencies, scheduled to take effect Jan. 1, 2015. Employers cannot ask about criminal records or history until after an job seeker is selected for an interview.
“After being released from prison,” said Illinois Attorney General Lisa Madigan, “people need to have the ability to reintegrate into society successfully and find legitimate employment, rather than relying on criminal activity to make a living.”
Elise Houren, a Chicagoland Chamber of Commerce spokeswoman, says, “The chamber remained neutral and did not take a position on the HB5701 legislation.”
Other measures, such as the 1995 amendment to the Illinois Human Rights Act have been used in an attempt to reduce barriers to work. Under Illinois law, employers or prospective employers cannot use arrest records in employment decisions, says Beth Johnson, director of the criminal records at Cabrini Green Legal Aid.
“There’s the law and then there’s reality,” Johnson says “Employers will still use that information and, Human Rights Act claims are brought against them for doing so.
“We’re putting certain segments of our communities in a perpetual cycle of unemployment and the inability to rise out of their situation.”
We need to look at men and women with criminal records as who they are, men and women,” Johnson said.
Precious puts the pieces together
Houser et al v. Pritzker could have implications beyond federal government hiring but also in the private sector on how criminal records screening are used or misused in the hiring process, according to Kirkpatrick, who specializes in constitutional law and civil rights law.
“Certainly private corporations are going to be watching,” Kirkpatrick says. “They aren’t going to want to do the same thing the government did and have that exposure if this case is successful.”
Kirkpatrick acknowledges there are certain times a person’s criminal history has a bearing on the job performed: “There are particular times, places and sensitive jobs and certain crimes that should be a disqualifier for certain applicants right off the bat. But that’s where lines have to be drawn. Are we painting with way too broad a brush to where we are capturing people who for no good reason are being eliminated for the job?”
Ironically, the Census Bureau should be particularly concerned about unfairly eliminating black and brown candidates, Kirkpatrick says.
He adds, “They should be out there striving to get people into the jobs that are from these communities who are best equipped to get census participation.”
Precious Daniels and Ignacio Riesco won’t let this mark on their “records” change their minds about what they have to offer as workers – or Americans.
“You are punishing people once for crimes that were never proven,” Riesco says, a law student at the University of California, Davis. “Even if some cases did find fault, I find it true draconian to think we are going to punish someone for something that may have been minor and happened 10 or 20 years ago.”
Since her rejection, Daniels got a job.
“I worked for a Healthcare IT firm where security is paramount,” Daniels says. “I worked there for a year. For the current position I have now, they did a thorough background check, and there was no issue.”
And what about that ripped up rejection letter?
When she went online and realized so many others didn’t get the temp job for the same reason, she yanked it out of the trash, and, like her life, taped it back together.