Tag: EEOC

Federal agencies urged to adopt fair hiring policies

The National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record.  In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country.  Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded. The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process.  Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers.  Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities.  These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise). The paper urges presidential action to implement the recommended reforms through an Executive Order on federal contracting, and a Presidential Memorandum directed to federal agencies.  It notes some legislation pending in Congress that would improve opportunities for people with a record, including the REDEEM Act co-sponsored by Senators Rand Paul and Cory Booker.  But changes in the law are not necessary to implement the report’s recommendations affecting federal employment practices. A Fair Hiring Platform NELP proposes an ambitious fair hiring platform that, if implemented by federal employers and contractors, would instantly transform the national landscape.  The Executive Order the report recommends would require federal contractors to take the following steps to increase opportunities for people with a criminal record: •  Remove the criminal history question from job applications and postpone the background check until a conditional offer of employment is made (i.e., “ban the box”), except where the specific position requires a national security clearance; •  Consider only “job related” convictions and take into consideration the age of the offense, the nature of the offense, and countervailing evidence of rehabilitation, as required by the EEOC; •  Refrain from asking about an individual’s arrest record, expunged offenses, dismissals, or juvenile offenses; •  Provide a written notice to the individual when an unfavorable determination is made, explaining the reason for the decision (including the disqualifying offense); • Provide strong notice and appeal rights for workers to challenge unfavorable determinations; and • Strictly comply with the background check requirements of the Fair Credit Reporting Act. In addition, federal agencies should be made subject to stricter regulation where their own hiring policies are concerned.  Specifically, a Presidential Memorandum should direct federal agencies “to correct the prejudicial aspects of the hiring standards and procedures regulating criminal background checks of applicants for federal employment,” and “embrace the role of a model employer.”  The report suggests that the appeal and waiver procedural protections mandated by the Maritime Transportation Security Act’s port-worker background check program, whose adoption NELP was instrumental in securing in the months after 9/11 and whose administration by the Transportation Security Administration NELP has monitored ever since, could be a model for federal agencies’ own employment policies and practices.  Specifically, the Presidential Memorandum should include the following key components: • The Office of Personnel Management (OPM) should revise the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964. Instead of the discretion now allowed to consider the age of the offense, evidence of rehabilitation, and other mitigating factors, the agencies should be required to do so; • To promote greater transparency and accountability, all federal agencies should report their suitability criteria to OPM and verify their compliance with the EEOC guidelines. Agencies should also report the appeal procedures that apply to each of the distinct categories of workers, including federal contract workers. Based on the information collected, OPM should issue a report to the president evaluating the findings and making recommendations for federal agency reform; • OPM should eliminate the criminal history question from the “Declaration for Federal Employment” form, and federal agencies should strictly follow the OPM standard policy that they postpone the background check until the end of the hiring process; • All federal agencies should be directed to evaluate the “collateral consequences” of federally mandated criminal background checks for employment; • Federal agencies should adopt the appeal and waiver procedures modeled on the Maritime Transportation Security Act’s port-worker background check program to all federal agency licensing and employment certification mandates; • The FBI should be directed to comply with existing regulations that preclude the reporting of non-serious offenses and to take additional steps to clean up the FBI background checks for employment, which severely prejudice the employment prospects of people of color; • The Consumer Financial Protection Bureau should publish regulations addressing the numerous routine violations of the Fair Credit Reporting Act by the background screening industry and employers, including the erroneous reporting of expunged and sealed cases; • Federal agencies should prepare options to require “targeted hiring” of people with criminal records on federally-funded projects and provide additional funding for “transitional jobs” that serve the needs of people who have been recently released from incarceration; • Federal agencies should actively promote and enforce the new federal civil rights guidances that strictly regulate the use of criminal history information by private – and public – sector employers and federally funded workforce programs. The bold reform agenda recommended by the NELP report seems a lot to expect of this Administration in its waning months.  However, we note that one person who has indicated an interest in assuming the presidency in 2017 already has a track record of implementing such a program, albeit on a somewhat smaller scale. In 2006 Governor Jeb Bush issued Executive Order No. 06-89, based on the report of a task force he had established, which directed each agency in the State of Florida 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) to report to him the reasons for any automatic disqualifications and any available procedures for waiver; 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  Governor Bush asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  He also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.” Might federal fair hiring become an issue in the coming presidential campaign? 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The need to eliminate barriers to diversifying police departments

The shootings and beatings of unarmed black men, boys, women and girls by police officers are sickeningly repetitive.  Also repetitive are the calls in response to diversify police departments by hiring officers who better reflect the communities and neighborhoods they would patrol.  These issues have surfaced starkly in Ferguson, Missouri, where three out of 53 officers are black. There, efforts to diversify the police department have been non-existent. Similarly in Cleveland, where twelve-year old Tamir Rice was killed by an officer while playing in a park, black residents make up 53 percent of the population but black officers comprise only 27 percent of the police force. In Baltimore, the racial composition of the police force more closely approximates the city’s population.  Nevertheless, the city has paid $5.7 million since 2011 in court judgments and settlements of police brutality claims.   In 2013, 70 percent of Baltimore’s police officers lived outside the city.   Thus, racial diversity alone is not a solution. In response to the events in Ferguson, Cleveland, Staten Island and Brooklyn, several reform measures have been offered to help effectuate improved relationships between police departments and communities of color, including diversifying departments and training officers on implicit bias.  The need to hire more black and Latino/a officers who come from and reside in communities across the United States that are like Ferguson and Cleveland is urgent.  To gain the trust of residents, officers cannot see the communities they patrol as “the other”; they cannot, as Officer Darren Wilson testified to the grand jury, simplistically and stereotypically believe that entire communities are not “very well-liked” and are “antipolice.” The killing of Michael Brown put the deeply rooted distrust between Ferguson’s residents and their police department on international display.  We have learned of the intense and intimate relationship between Ferguson’s majority black residents, law enforcement and the criminal justice system.   For instance, of the 5,384 traffic stops by the Ferguson Police Department in 2013, 4,632 were of black drivers.   During those stops, black drivers were twice as likely to be searched and arrested as white drivers.   These statistics, while numbing, are reflective of cities, big and small, across the United States.   They find similarities in the legacy of New York City Police Department’s stop and frisk practice and its relationship to “quality of life” policing, which, fused with race, were the undercurrents that led to Eric Garner’s death. However, one barrier to truly diversifying police departments in ways that reflect the communities they patrol is the broad and reflexive use of criminal records to disqualify potential candidates.   As is true of other public as well as private employers, police departments use criminal background checks to exclude candidates from joining their ranks.  But police departments are particularly rigid and inflexible when it comes to criminal records.   (The NYPD famously resisted letting war hero Osvaldo Hernandez join the force even after Governor Paterson pardoned him.)  Thus, efforts to diversify will be compromised if departments do not broaden their perspectives on officer qualifications. Across the United States, poor individuals of color are disproportionately represented at each stage of the criminal justice system and, as a result, are particularly burdened by criminal records.  For far too many individuals, the effects of a criminal record are vast and often permanent. The most significant barrier is the inability to secure a job.  This is particularly true for black men, whose criminal records exacerbate the stereotypes and stigma that attach to race.  The Equal Opportunity Employment Commission forbids the blanket use of criminal records to exclude individuals from job opportunities precisely because the indiscriminate use of these records disproportionately affects black and Latino/a job applicants.  The EEOC has a range of factors to guide employers when considering applicants with criminal records, including the nature of the crime, the length of time that has passed since the crime and the relationship between the crime and the job sought. To help address the undue impact of criminal records on job prospects, 13 states and approximately 95 cities and counties have enacted ban-the-box laws.  These laws delay inquiry into a job applicant’s criminal record until later in the job application process, after the applicant has interviewed and, in some instances, been deemed qualified for the position.   The laws allow individuals to be assessed based on their qualifications, rather than shut out of the process automatically at the outset because of their records. However, police departments, as law enforcement agencies, are largely exempted from the EEOC and ban-the-box requirements.   As a result, departments have the authority to use overly broad disqualifications to bar candidates with criminal records.   These rigid restrictions disproportionately impact black and Latino/a candidates and stand in the way of advancing police departments in ways that are reflective of the communities they protect and serve.   As important, these restrictions are short-sighted.   Police officers who have had an experience with the criminal justice system can actually benefit communities, as they have a deeper, richer appreciation of the full bearing of the criminal justice system.  They understand the true significance of being charged with a crime as well as the obstacles to moving past that circumstance. As a result, a criminal record—for instance, a record involving a long-ago misdemeanor or minor offense, or some felony offenses— should not, by itself, be an automatic bar to a career in law enforcement.   Some, probably many, feel reflexively that that a prior criminal record should be a disqualifier for joining the police force.   However, departments should assess the record—and the candidate—using the factors the EEOC requires.  Wise discretion and appreciation of context impact all aspects of police work, from earning and maintaining trust, to deciding when to initiate a full-blown encounter versus giving a warning (or saying nothing at all), to what to say during any interaction and the words used to convey the message.    Perspective, experience, understanding, appreciation, respect, tone and investment—in individuals and communities—are all crucially important aspects of police work.   Officers should understand that issuing a citation to a mother because her toddler son was eating a banana while exiting a subway (a court case that I observed recently in Baltimore City, for the crime of eating on the subway) can be as impactful and life-altering as arresting an individual for any other criminal act. Lives are often forever changed as a result of interactions with police officers and the criminal justice system, regardless of the reasons or the circumstances.   Officers who have lived these interactions can bring particular sensitivity to the range of feelings, life experiences and issues that are plaguing relationships between law enforcement and the individuals, families and communities they have sworn to protect and serve.     Read more

“Decades-long Arrest Wave Vexes Employers”

The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction.  The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford. Companies seeking new employees are forced to navigate a patchwork of state and federal laws that either encourage or deter hiring people with criminal pasts and doing the checks that reveal them. Employers are having to make judgments about who is rehabilitated and who isn’t. And whichever decision they make, they face increasing possibilities for ending up in court. Last August these two veteran reporters wrote about the increasing number of Americans burdened with status-based restrictions (“America Busted: As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime”), and two weeks ago they wrote about the assembly line justice in misdemeanor courts that makes it easy to pick up a criminal record (“Justice is Swift as Petty Crimes Clog Courts”).  The current installment shows how employers struggle to reconcile their conflicting obligations to protect their workplace and comply with state laws that may send conflicting signals (don’t ask, but do restrict). A final installment will deal with the difficulty for individuals with a record to restore their legal rights and social status. The article describes the conflicting signals sent by laws that encourage or require more stringent background checks, laws that direct employers not to ask about criminal record until an offer is made (“If it is a disqualifying offense, you’ve just wasted both the candidate’s and the employer’s time”), and the threat of EEOC enforcement action or negligent hiring suits.  Courts have backed employers in their use of background checks: A judge last year dismissed an EEOC suit accusing a Dallas events-marketing firm, Freeman Co., of a pattern of discrimination based partly on its use of criminal-background information. Judge Roger W. Titus, in dismissing the suit in federal court in Greenbelt, Md., said the agency was asking companies to ignore “criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC.” At the same time, laws that require employers to fire qualified workers seem ripe for challenge: Ohio in 2007 passed a law barring people convicted of certain crimes from working in public schools. The Cincinnati system discharged 10 employees, nine of them black. Two of the nine filed a suit in Cincinnati federal court, which is still pending, alleging racial discrimination.     One plaintiff, Eartha Britton, 60 years old, was an instructional assistant and 18-year veteran. Her crime: a 1983 conviction for being a go-between in the sale of $5 worth of marijuana, a conviction that was later expunged, the suit said. Through her attorney, she declined to be interviewed. In situations where the law does not require rejection, employers must do their best to reconcile the “varying impulses—to give job seekers a fair shot, to keep workplaces safe and to keep companies out of legal jeopardy.” Some states have developed standards to assist employers in charting this course, and others invite reliance on restoration mechanisms such as pardon or expungement (to be discussed in the next WSJ article).  It seems that employers who are trying to do the right thing would welcome some more coordinated national effort to address the issues raised by mass conviction.   Read more