Title VII protections based on criminal record are modest not coercive

In a recent series of posts on The Volokh Conspiracy blog promoting his book The Eternal Criminal Record, Professor James Jacobs “[speaks] strongly against a public policy that coerces private employers to ignore job applicants’ criminal records while leaving them to cover the costs imposed by ex-offender employees.”    His arguments suggest that employers are being saddled with such costs (for which no proof whatsoever is presented) because of social activism on behalf of people with criminal records. In fact, modest legal protections for people with criminal records derive from longstanding employment discrimination law principles.

Professor Jacobs claims that Title VII of the landmark Civil Rights Act of 1964, the core federal law prohibiting race discrimination in employment, has been somehow misconstrued to limit an employer’s consideration of criminal records for hiring decisions. He states that the application of Title VII to employer consideration of criminal records “remains confusing and unsettled.”

He is wrong. Title VII prohibits employers from excluding applicants for any reason if that results in disproportionate exclusion of minorities from the workforce, unless there is a “business necessity” for the practice as applied.

titleVIISince at least the 1980s, overbroad employer policies that reject people with criminal records – often across-the-board bans on people with convictions or even arrests – have been found to violate Title VII under this disparate impact theory, given the disproportionate criminal justice involvement of minorities.  Indeed, the first policy guidance on criminal records from the Equal Employment Opportunity Commission (EEOC) in 1987 was under the signature of current Supreme Court Justice Clarence Thomas, who has seldom been admonished  for his broad interpretations of Title VII.

That EEOC policy statement identified three bedrock issues for employers to evaluate when considering criminal records that remain vital today: the length of time since the conviction; the seriousness of the crime; and the relationship between the offense and the job at stake.  These three factors help the employer determine whether or not the job applicant’s record indicates risk to the employer.

Throughout his posts, Professor Jacobs indicates that employers are being forced to “ignore” criminal records. In fact, no one suggests that criminal records must be ignored, including us. But no one knowledgeable about Title VII contends that employers have unfettered discretion to consider any and all criminal records. Stated differently, blanket disqualifications of people with criminal records violate the law.

Professor Jacob repeatedly assumes that having a criminal record is a proxy for being a poor employee. Do people with criminal records tend to assault people on the job? Steal from the workplace?  Come late to work?  Research tying having a criminal record to any kind of job performance simply does not exist.

Indeed, what recent social science research does prove is that a criminal conviction does not even necessarily indicate that a person has a heightened risk for committing a crime in the future. As time passes without commission of a new crime, an ex-offender’s risk of committing another crime decreases, to a level of risk comparable to the rest of the population. Which highlights another important point: both people who have been convicted of crimes and those who have not may commit crimes in the future. A background check is simply not a silver bullet for identifying employees who may be trouble.

Finally, people with criminal records would be shocked to hear that Professor Jacobs is arguing against what he calls a “pro-ex-offender employment policy.” Truly, there is no affirmative action for people with criminal records.  There is rejection, day after day, year after year, of people who are extremely motivated to work hard and justify an employer’s faith in them. Title VII and other laws simply try to give them a shot at proving themselves.

As many as one in three American adults has a criminal record. We cannot allow such a large percentage of the population to be written off as unfit for our workforce, especially when many of them have very old or minor convictions.

The employment disenfranchisement of people with criminal records is the major civil rights issue of this generation – the sort that Title VII was enacted to redress.

Sharon Dietrich

Sharon Dietrich is the Litigation Director of Community Legal Services, Inc., a legal aid program serving the low income population of Philadelphia. Her work includes litigation, policy advocacy, and individual representation, and she specializes in employment law, especially criminal record barriers.

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Adam Klein

Adam Klein is a partner of Outten & Golden LLP and is the chair of the firm's Class Action Practice Group. His practice focuses on the prosecution of class action and impact litigation of employment discrimination and wage and hour claims. Mr. Klein currently serves as lead or co-lead plaintiffs' counsel in numerous major class action lawsuits involving discrimination claims in the financial services industry and challenges to the use of credit and criminal history records for employment decisions. Mr. Klein has testified before the Equal Employment Opportunity Commission and Congress on issues relating to the use of credit and criminal history information as a screen for employment.

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