Re: Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964
Advocacy Letter - 04/24/12
Source: The Leadership Conference on Civil and Human Rights
Recipient: The Honorable Jacqueline A. Berrien, Chair United States Equal Employment Opportunity Commission
The Honorable Jacqueline A. Berrien, Chair
United States Equal Employment Opportunity Commission
131 M Street, NE
Washington, DC 20507
Dear Chair Berrien:
On behalf of The Leadership Conference on Civil and Human Rights, and the undersigned organizations, we thank the Equal Employment Opportunity Commission (EEOC) for its commitment to addressing discriminatory barriers to the workplace and strongly support the proposal to update the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. Updating the guidance will help balance the civil rights of workers and the legitimate concerns of employers about safety and security at the workplace.
We also commend the EEOC for its thoughtful, fair, and thorough process in soliciting input on this issue of critical concern to millions of U.S. workers, especially workers of color who are hardest hit by the proliferation of criminal background checks for employment because they have the highest rates of unemployment in today’s challenging economy. The EEOC has held at least two meetings for which it has solicited and received the views of a diverse set of stakeholders, and participated in numerous forums organized by the key stakeholders.1 Finally, the EEOC provided several opportunities for interested parties to submit documents to be considered as part of the record. The Commission received roughly 300 comments after its July 2011 meeting, two to one in favor of updating the guidance.
As our organizations continue our advocacy, litigation, and public education efforts, we support the EEOC’s efforts to clarify and update the guidance. The legal requirements guiding the use of criminal background checks have existed for decades. Twenty-five years ago, the EEOC recognized the disparate impact that criminal background checks have on workers of color protected against employment discrimination by Title VII of the Civil Rights Act of 1964. In 1987, the EEOC made clear that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics.2 Unfortunately, those disparities and others in the criminal justice system persist today.
By building on the guidance established in 1987, the Commission will provide necessary direction to the courts, employers, private screening firms, public employers at all levels of government, workers struggling to support their families, and communities hard hit by unemployment. Although it has long been the EEOC’s policy that an absolute bar to employment based on a criminal conviction record is unlawful, many private employers continue to utilize blanket prohibitions that exclude anyone with a prior criminal record from employment. The use of criminal background checks is widespread. At least 90 percent of companies reported using criminal background checks for their hiring decisions, which is up from 51 percent in 1996.3
A disproportionate number of individuals with a criminal record come from low-income communities of color. Due in part to racial profiling and discriminatory sentencing schemes, racial and ethnic disparities persist at all stages of the criminal justice system. For example, African Americans account for 28 percent of all arrests in the United States, although they represent just 13 percent of the population; that arrest rate is more than double their percentage of the population.4 In contrast, the arrest rates for white individuals falls below their percentage of the population.5 African Americans are also more likely than white individuals to be charged once arrested, and more likely to be convicted and incarcerated when charged.6 These inequities in the criminal justice system only magnify the discriminatory barriers already experienced by minorities and low-income individuals living in the United States.
The EEOC is in a unique position to help address the systemic discrimination described above. We are similarly encouraged by the past and hopefully continued bipartisan support that this issue has received. Hence, we urge the EEOC to move forward and update its guidance that applies to the use of arrest and conviction information.
If you have any questions, please contact Lexer Quamie, Counsel, at (202) 466-3648 or Nancy Zirkin at (202) 263-2880. Thank you for your attention to this issue of critical importance.
The Leadership Conference on Civil and Human Rights
9to5, National Association of Working Women
American Association for Affirmative Action
American Civil Liberties Union
American Federation of Labor - Congress of Industrial Organizations (AFL-CIO)
Asian American Justice Center, member of Asian American Center for Advancing Justice
Bazelon Center for Mental Health Law
Charles Hamilton Houston Institute for Race and Justice at Harvard Law School
Lawyers’ Committee for Civil Rights Under Law
League of United Latin American Citizens
Legal Action Center
NAACP Legal Defense and Educational Fund
National Action Network
National Association of Social Workers
National Bar Association
National Black Justice Coalition
National Education Association
National Employment Law Project
National Employment Lawyers Association
National Coalition on Black Civic Participation
National Council on Independent Living
National Gay and Lesbian Task Force
National Partnership for Women and Families
National Urban League
National Women’s Law Center
National Workrights Institute
Poverty & Race Research Action Council
The Sargent Shriver National Center on Poverty Law
The Sentencing Project
Transportation Trades Department, AFL-CIO UNITE HERE
The United Auto Workers (UAW)
State and local organizations
Asian American Institute,
member of Asian American Center for Advancing Justice (Illinois) Asian Law Caucus,
member of Asian American Center for Advancing Justice (California) Asian Pacific American Legal Center,
member of Asian American Center for Advancing Justice (California) Bridgeport Reentry Collaborative (Connecticut)
Center for NuLeadership on Urban Solutions Community Legal Services, Inc. (Pennsylvania) Community Service Society (New York) Community Solutions (Connecticut)
Fortune Society (New York)
Institute on Social Exclusion, Adler School of Professional Psychology (Illinois) LAW Project of Los Angeles (California)
Michigan State University College of Law, Civil Rights Clinic (Michigan) Public Justice Center (Maryland)
Rubicon Programs (California)
Safer Foundation (Illinois)
Seattle Office for Civil Rights (Washington)
Social Justice Law Project (California) Women’s Reentry Network (Arizona)
Cc: The Honorable Constance S. Barker, Commissioner
The Honorable Stuart J. Ishimaru, Commissioner
The Honorable Victoria A. Lipnic, Commissioner
The Honorable Victoria A. Lipnic, Commissioner
Cass R. Sunstein, Administrator,
Office of Information and Regulatory Affairs, Office of Management and Budget
Nancy-Ann DeParle, Assistant to the President and Deputy Chief of Staff
1. See Meeting of November 20, 2008 – Employment Discrimination Faced by Individuals with Arrest and Conviction Records at http://www.eeoc.gov/eeoc/meetings/11-20-08/index.cfm and Meeting of July 26, 2011 – EEOC to Examine Arrest and Conviction Records as a Hiring Barrier at http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm.
2. EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982) (2/4/87), 29 C.F.R. § 1607.16. www.eeoc.gov/policy/docs/convict1.html.
3. Michelle Natividad Rodriguez and Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment, National Employment Law Project, March 2011 http://www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf/?nocdn=1, at 1.
4. Id. at 5; See also Crime in the United States, 2009 U.S. Department of Justice—Federal Bureau of Investigation (Sept. 2010) table 43, http://www2.fbi.gov/ucr/cius2009/arrests/index.html.