A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination. The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.
The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII. Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”
The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.
Second-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law.
The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic. The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation.
That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season:
1: Practice not physically recoiling in horror from people we encounter in life.
2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation.
Each state has its own laws about voting following a felony conviction. Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes.
I recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying.
Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy.
Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis.
An article from The Marshall Project published on September 17 got us thinking about the elusive term “expungement” and what it really means, both functionally and philosophically. In “Five Things You Didn’t Know About Clearing Your Record: A primer on the complicated road to expungement,“ Christie Thompson describes an unusual class action lawsuit recently filed by a public-spirited lawyer in a Tennessee county court seeking “to have the case files destroyed for hundreds of thousands of arrests and charges that never resulted in a conviction.” She proceeds to point out some of the pros and cons of expungement relief, including that expunged records may still be available from private background screening companies or the internet.
But the problems with expungement laws are deeper than the article suggests. Quite apart from theoretical objections to relief based on pretense, the fact is that expungement laws have functional flaws even where public records are concerned. For example, the Tennessee expungement law described in the Marshall Project article has no effect on records in the possession of law enforcement or prosecutors, or on appellate court records and opinions. See Tenn. Code Ann. § 40-32-101(b)(1). Moreover, it authorizes release of expunged arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding upon request. See § 40-32-101(c)(3).
The Atlantic has published an excellent article about the permanently disabling effects of a criminal record, by two attorneys at the East Bay Community Law Center (Oakland, CA), Sarah Crowley and Alex Bender (an Equal Justice Works AmeriCorps Fellow). Haunted by the Past: A Criminal Record Shouldn’t Ruin a Career, March 25, 2015. The authors argue, based on their experiences in their practice, that “too many applicants, particularly people of color, are being denied jobs based on background checks that are irrelevant or even inaccurate.” They describe the sources of inaccuracy and other unreliability in criminal background checks, even ones based on fingerprinting. But then they focus on the real problem, which is that over-reliance on background checks “inevitably screens out qualified, trustworthy job applicants.”
They tell the story of one woman whose dated misdemeanor convictions deprived a California group home of a valuable employee: Read more
Last week was an exciting one for proponents of the expansion of college opportunities for people who are currently incarcerated or who have criminal records. Two reports were released that propose strategies to break the cycle of recidivism, promote public safety, and de-escalate mass incarceration by opening up post-secondary educational opportunities. It is fitting that both reports come at a time when America is reflecting on the events of “Bloody Sunday” in Selma, Alabama, fifty years ago, and envisioning where the momentum of Black Lives Matter will take us. It is the intersection of an historic civil rights struggle, the human rights movement that confronts “mass criminalization” and the racial divide in the U.S. today.
The Stanford Criminal Justice Center and the Warren Institute at the UC Berkeley School of Law issued a report from the Renewing Communities Initiative, Degrees of Freedom: Expanding College Opportunities for Currently and Formerly Incarcerated Californians. It was released just days after the Center for Community Alternatives (CCA) in cooperation with the Education from the Inside Out Coalition (EIO Coalition), issued its report, Boxed Out: Criminal History Screening and College Application Attrition, the subject of an earlier post on March 4, 2015.
In recent months, heightened attention has been paid to the background check practices of the ride-sharing company Uber. Concerns about the safety of Uber services prompted the District Attorney’s Offices of San Francisco and Los Angeles Counties to file suit last December against Uber for misleading customers about the scope of its driver background checks. As discussed in a previous post, Uber has largely resisted efforts by legislators to mandate more intensive background checks, but the pressure continues to mount.
This pressure for enhanced background checks has raised another area of concern: the manner in which Uber conducts background checks, and the impact of its employment practices on drivers and prospective drivers. At the end of 2014, our organizations, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and the law firm Goldstein, Borgen, Dardarian & Ho, filed a putative, nationwide class action lawsuit against Uber, based in part on its violation of federal and state background check laws.
Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records. However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy. The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past. Read more