A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs.[1]  In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check.

The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention:

Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview.

According to the coalition, the Obama administration has endorsed fair hiring policies since at least last spring when the My Brother’s Keeper Task Force called for banning the box. Last year, the Attorney General’s Reentry Council urged that “mak[ing] the federal government a model employer” should be a key point of the federal reentry agenda.

The July 20 letter challenges the President to make good on this rhetoric:

It is past time for your administration to make these powerful pledges a reality by leveraging the federal government’s considerable resources to reform the hiring process of workers employed by federal contractors and federal agencies, which account for over 20 percent of the entire U.S. workforce.

The specific reform proposals in the July 20 letter incorporate, in broad strokes, the more detailed agenda outlined in a report published by NELP this past January.  But are these proposals, even if fully implemented, enough to make fair hiring a reality in the federal workplace?

While ban-the-box policies have been adopted by numerous states, municipalities, and private entities, they have not yet been shown to be effective in limiting consideration of criminal records.  Some fear that they simply delay inevitable rejection.  As one woman remarked following a series of rejections based on late-stage records checks, “states with ban-the-box laws didn’t really ban those boxes; they just moved them to a different time in the hiring process.”

A recent court case confirms anecdotal evidence long suggesting that employers who reject applicants with criminal histories will do so regardless of when that history surfaces.  In some cases rejection may be mandated by insurers or regulators.  If that is indeed the case, then ban-the-box policies will encourage hiring only if they are accompanied by policies that limit consideration of the record itself.

Requiring federal agencies and contractors to adhere to EEOC enforcement guidance on consideration of criminal records would go a long way toward bridging that gap, but it is unlikely to close it.

The EEOC guidance requires employers to conduct an individualized assessment of each applicant that takes into account the age and nature of an offense, its relationship to the job sought, and evidence of rehabilitation.  Rejection based on an applicant’s criminal history is permissible only if “job-related and consistent with business necessity” — a determination that is ultimately up to the employer.

As a practical matter, it is hard to go behind an employer’s determination not to hire a particular individual, as years of Title VII litigation demonstrate.  Is a five year old shoplifting conviction related to a job where a person has access to a company supply closet?  Is a 10 year old DUI charge related to a job that does not requires driving?  One that does?   As long as employers can make an argument for job relatedness where an individual applicant is concerned, a hiring policy incorporating the EEOC guidance is likely to invite circumvention.

Granted, the more detailed reforms proposed last winter by NELP would create a process that would allow applicants to appeal their rejection as inconsistent with the EEOC guidance, and empower the Office of Federal Contract Compliance to suspend or terminate contracts for failure to adhere to it.  However, unless the entities responsible for hearing appeals and assessing contractor compliance develop rules defining job-relatedness, the standards they use to review employer actions will be no clearer than those the employers are supposed to implement in the first instance.

This is not to say that the EEOC guidance cannot serve as a model for an effective fair hiring policy, only that it is not enough without a viable enforcement mechanism. As the coalition says in the letter, “Absent a strong and enforceable policy, federal contractors and federal agencies will continue to violate these basic standards of law and fairness.” [2]

Rather than simply appropriate the EEOC guidance, the administration should build on it. Business necessity and job relatedness ought to be touchstones of any fair hiring policy, since they acknowledge that convictions may be disqualifying but only in certain limited situations. Those touchstone concepts can be used to craft clear and enforceable agency-specific rules that clearly define when rejection is appropriate.

State legislators have shied away from bright line categories allowing consideration of some records but not others, because hiring decisions so frequently depend upon the totality of facts and circumstances.  For example, New Jersey’s Opportunity to Compete Act began its legislative life with provisions barring consideration of certain dated criminal records, provisions that were omitted just prior to enactment.  Similarly, the ban-the-box law passed in Delaware would have barred consideration of convictions more than ten years old (those provisions did not survive the legislative process either).

A case can be made that dated convictions (particularly minor ones) are inherently unrelated to any job, and that discrimination based on such convictions (at least categorical discrimination) is inconsistent with any sort of business necessity.  An agency or contractor should be presumptively prohibited from taking such a conviction into account, and should have a heavy burden of justification if unusual circumstances warrant taking any such conviction into account for a particular job.  If this sort of administrative standard were incorporated into agency-specific rules interpreting the requirements of the EEOC guidance, it would give a federal fair hiring policy the teeth it needs.

It would be fantastic news if the President banned the box and mandated adherence to the EEOC guidance tomorrow.  But any celebration ought to be tempered by the practical reality that this would represent only the beginning of an effective federal fair hiring policy. If the President is committed to making the federal government a model employer, he must use his considerable executive authority to build on that foundation with specific policies by which agencies and contractors may be held to account, and procedures for enforcing them. We hope that he is prepared to do so.

 

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[1] The July 20 call follows on the heels of a March 25 letter to the President from the same coalition, joined by nearly 200 additional groups including the Collateral Consequences Resource Center.

 

[2] The fact that the EEOC guidance is open to such broad interpretation and so difficult to enforce is not surprising given its background. The guidance was not created to aid reentry or improve internal practices.  Rather, its purpose is to help employers comply with a provision of Title VII of the Civil Rights Act that prohibits hiring practices that have a disparate impact on racial minorities and other protected classes, unless those practices are “job related and consistent with business necessity.”  Somewhat ironically, the factors and standards laid out in the EEOC guidance come directly from case law interpreting when an employer may successfully assert a “business necessity” defense — a defense that protects an employer’s right to discriminate against those with criminal records (a class of people not protected by Title VII).