Tag: EEOC

Appeals court invalidates EEOC criminal record guidance

On August 6, the 5th Circuit Court of Appeals invalidated the EEOC’s 2012 Enforcement Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.”  See Texas v. EEOC, No. 18-10638 (August 6, 2019).  Among other things, the Guidance prohibits consideration of blanket bans on hiring people with a criminal record, and requires nuanced case-by-case consideration as to whether a particular employment policy or action satisfies Title VII’s business necessity test.  The State of Texas claimed that the Guidance was an unauthorized substantive rule that would override numerous mandatory state law bars to hiring people with a felony conviction.  After rejecting various jurisdictional defenses based on lack of finality and standing, the court affirmed the district court’s holding invalidating the Guidance. Perhaps the most significant thing about the appeals court’s ruling is its conclusion that the Guidance was a substantive rule that exceeded the EEOC’s authority to bind either public or private employers.  The district court had simply enjoined enforcement of the Guidance pending satisfaction of the notice and comment rulemaking requirements of the APA.  But the court of appeals went further, stating that “the text of Title VII and precedent confirm that EEOC lacks authority to promulgate substantive rules implementing Title VII.”  It therefore modified the district court’s injunction to strike the clause “until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.”  The court also “clarified” the terms of the injunction to say that “the EEOC and the Attorney General may not treat the Guidance as binding in any respect.” While there may yet be further litigation over the Guidance, and while Congress may yet decide to act to bar record-based discrimination, it would appear that action to secure fair chance employment will now be with the states.       Read more

California follows federal lead in limiting employment screening

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. Both the California regulation and the EEOC guidance follow from the “disparate impact” theory of liability that applies both to the FEHA and Title VII.  It allows an individual to proceed with an employment discrimination claim absent a showing of individual disparate treatment if he or she can show that a facially neutral employment practice adversely impacts a protected class, such as a particular racial group.  Because African Americans and Hispanics are more likely than other racial groups to have a history of criminal justice involvement, disparate impact theory has been used in both state and federal courts to challenge criminal history screening practices, especially blanket bans on hiring individuals with any conviction history at all. Although claims of disparate impact discrimination based on criminal history screening practices are not new, we are aware of no jurisdiction other than California that has codified such a basis for liability. Even the EEOC’s position is stated in the form of a “guidance,” and not codified in its official regulations. (Of course, the EEOC’s role in enforcing violations of Title VII gives its guidance significant weight.) The new regulation also restates a number of preexisting prohibitions on criminal history consideration that are imposed by the California’s Labor Code.  Among these is a general prohibition on inquiries into or consideration of arrests not resulting in conviction, non-conviction dispositions (including referral to, or participation in, diversion programs), arrests and dispositions that occurred while subject to juvenile court jurisdiction, and non-felony marijuana possession convictions more than two years old. More information about the law on criminal history discrimination in employment and licensing in California is available on the state’s Restoration of Rights Project profile, available here. Read more

President urged to make federal hiring fairer — but is the “ask” enough to get the right result?

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.   [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).   Read more

Taking a bite out of Apple’s restrictive hiring policies

  Apple, maker of the iPhone and iPad, came under fire earlier this month when the San Francisco Chronicle revealed that the company was prohibiting those convicted of a felony in the last 7 years from working on the construction of an enormous new corporate campus in Cupertino, California.  Under pressure from the iron workers union and advocates for fair hiring policies, the company quickly reversed course: We recognize that this may have excluded some people who deserve a second chance. We have now removed that restriction and instructed our contractors on the project to evaluate all applicants equally, on a case-by-case basis, as we would for any role at Apple. But many believe that Apple can do more to end employment discrimination against those with criminal records and can set an example for the tech industry and the country in the process. The change in policy is certainly welcome. 12 million Americans have felony convictions in their past, and many of them are dependent on jobs in fields like construction where criminal background checks are not generally required of employees. The ACLU observed the significance of Apple’s move toward more inclusive employment practices on its Washington Markup blog last week: As a multinational corporation, [Apple’s] support for fair-chance hiring carries huge symbolic value, as well as positively affecting the lives of real people who have done their time and seek to rebuild their lives as productive neighbors, fathers and mothers, and sons and daughters. However, in a recent blog post, former NAACP president Benjamin Jealous remained concerned that, “the company’s response leaves too many unanswered questions about the status of the fired workers, the contours of Apple’s internal policy, and the company’s commitment to ensuring that this will never happen again.” Apparently some of the employees fired for having felony records will be able to reapply for their jobs, but Iron Workers Local Union 377, which represents many of the disqualified workers and led the call for Apple to revise its policy, is not yet satisfied, saying in a statement: While we appreciate Apple’s stated commitment to “second chances,” we do not know and so are obliged to ask what are the criteria for the “case by case basis” on which Apple will now evaluate workers. We fully understand Apple’s legitimate needs for security, but we believe strongly that there must be a nexus between those needs and any criteria for evaluation and possible exclusion of workers. The federal Equal Employment Opportunity Commission appears to agree with the union’s position.  According to EEOC enforcement guidelines, employers that bar those with criminal records from employment may be subject to liability under Title VII the federal Civil Rights Act unless such bars are “job related for the position in question and consistent with business necessity.” The guidelines also require an individualized assessment of each candidate based on a number of factors including the circumstances of the offense and evidence of subsequent good character and rehabilitation. As it stands now, how the criminal records of new applicants and previously dismissed employees will factor into the case-by-case evaluation Apple now supports is anybody’s guess. Many, including the National Employment Law Project (NELP), the ACLU, and Jealous, want to see Apple implement transparent company-wide fair-chance hiring practices consistent with EEOC guidelines, including banning the box.  In a recent op-ed piece in the Mercury News, NELP’s Michelle Natividad Rodriguez writes: If Apple’s commitment to “second chances” is genuine, then it should become a vocal corporate leader in the national movement for “fair chance” hiring reform, which has been adopted in 15 states and more than 100 cities and counties. One component of “fair chance” is to remove the check-box that asks about convictions and to delay any background-check screening. Too often employers discard job seekers who’ve checked the box, regardless of qualifications, job-relatedness of the conviction, or rehabilitation. …. Just as Apple has pledged to maintain labor and human rights standards with its supplier chain, it should ensure that its subcontractors, including in construction, adopt fair hiring practices. She also urges Apple, as a major federal contractor, to take a leading role in the campaign to implement fair-chance hiring in the public sector: Apple should also join the nearly 200 organizations and prominent individuals calling on President Barack Obama to take immediate executive action to ensure that federal agencies and contractors remove unnecessary barriers to employment for qualified job candidates with past records. As a major federal contractor, Apple can pave the way for other employers. The federal initiative will translate into real opportunities, as nearly one in four U.S. workers is employed either by a federal contractor, a subcontractor or the federal government.   You can find the full stories referenced above at the following links: ACLU: Apple Made the Right Call on Fair-Hiring Practices. Uncle Sam Should Follow Its Lead. Benjamin Jealous & Heather Warnken: Apple’s Teachable Moment Michelle Natividad Rodriguez: Apple Computer hiring: Commitment to second chances for felons still unclear   Read more

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. Since 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. Read more