Progress in the Peach State: First State in the South to Ban the Box

March 4, 2015
Photo courtesy of the Georgia Justice Project.

Photo courtesy of the Georgia Justice Project.

 

Just weeks ago, Georgia became the first state in the South to Ban the Box statewide! This is major progress for the state, as it joins only 13 others that have passed statewide legislation banning the box from initial employment applications. Governor Nathan Deal was encouraged to implement the policy through an executive order on February 23, 2015, because current statistics show that one in three Georgia citizens have a criminal record. The Georgia Justice Project has been working on this for over two years, and you can read more about their efforts here. Congrats to the Peach State, here’s to hoping Carolina has this on its mind!

 

For an updated information on Ban the Box in 2015, click here to access NELP’s new resource guide.


EEOC Cracks Down on Consideration of Criminal Convictions in Hiring

January 21, 2015

By: Gabrielle Valentine

While reducing recidivism has been the driving force behind the Ban the Box initiative, the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“the Guidance”) sheds a new light on the importance of employers following fair hiring standards.[1]  Although the Guidance is not binding on courts, it is of great significance to employers because many courts defer to the Equal Employment Opportunity Commission (EEOC), and companies not complying with EEOC regulations risk being sued by the EEOC.

Under Title VII of the Civil Rights Act, employers may not treat a current or potential employee differently than other current or potential employees on the basis of a protected class such as race, color, religion, sex, or national origin.[2]  This prohibits employers from engaging in activities such as hiring, firing, or demoting based on a protected class.  Title VII also prohibits employers from engaging in standard operating practices and procedures that, while seemingly neutral and non-discriminatory on their face, ultimately have the effect of discriminating against a particular protected class.

Prior to enacting the Guidance, the EEOC recognized that for the previous twenty years, the number of people having contact with the criminal justice system was significantly increasing in the working-age population.[3]  Specifically, the EEOC recognized that arrest and incarceration rates were particularly high for African-American and Hispanic men.[4]  The EEOC notes that African-Americans are arrested two to three times more frequently that others of the general population.[5]  While statistics predict that 1 in 17 white men will spend time in prison during their lifetime, 1 in 6 Hispanic men and 1 in 3 African-American men are expected to serve time in a prison.[6]  Thus, an employer may violate Title VII two ways: (1) if, based on race or national origin, he treats criminal history information differently for different applicants or employees, or (2) he has a practice of uniformly considering arrest and conviction records that, on its face seem non-discriminatory, but actually has the effect of excluding African-Americans and Hispanics from the workplace because of the statistically proven higher arrest and conviction rates.[7]

The EEOC Guidance provides that, for an employer to have a practice of considering an applicant’s criminal history without risking liability under Title VII, the consideration of applicants’ criminal history must be job-related and consistent with business necessity.[8] In determining whether the conviction is consistent with business necessity, the EEOC will consider the following factors: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought.[9]

EEOC Pic

While the EEOC did not see much initial success in the enforcement of the Guidance, two recent lawsuits against BMW Manufacturing and Dolgencorp indicate EEOC’s interest in the enforcement of fair hiring standards.  In its suit against BMW, the EEOC alleged that BMW’s background check has a disparate impact on African-Americans by depriving them of employment with BMW and BMW’s logistic services providers.[10]

However, the EEOC faces much opposition because of its practice to conduct background checks when hiring for most positions.  In response to the EEOC’s complaint, BMW filed a motion to compel documents that describe the EEOC’s hiring process in relation to criminal background checks.[11]  The EEOC objected on the grounds that its hiring practices were not relevant to the issue of whether BMW’s practices were consistent with business necessity.[12]  The EEOC’s relentlessness in pursuing “violations” of Title VII in relation to criminal background checks marks the potential for a future of litigation.

Ultimately, the Ban the Box movement is nothing short of a win-win policy for everyone involved.  Not only does the community benefit from reduced recidivism, but following the Guidance shields employers from the risk of EEOC liability while greatly expanding the pool of qualified applicants since many applicants with a criminal history are deterred from even applying for a job.  Furthermore, the “business necessity” analysis applied by the EEOC shields the employer from negligent hiring claims because, for the most part, employers considering the nature of the offense, the time that has passed since the offense, and the nature of the job held or sought will not hire employees that pose a significant threat to the workplace.

[1] The Ban the Box initiative is a movement that asks employers to refrain from requiring individuals to disclose criminal convictions on initial applications. For more information about Ban the Box and the clinic’s work with the initiative please see the following: https://cslcivilrights.com/2014/03/13/i-am-not-my-record/.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

[3] EEOC Decision No. 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Complaint, EEOC v. BMW Mfg. Co., LLC.

[11] Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.

[12] Brief in Opposition to Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.


Ban the Box receiving national attention… Again!

October 1, 2014

The Sargent Shriver National Center on Poverty Law is a non-profit organization based out of Chicago that provides national leadership in advancing laws and policies to improve the lives and opportunities of people living in poverty.  As part of the Shriver Center’s advocacy, they choose to highlight other groups who are doing excellent work throughout the US.

Last April, the Charlotte School of Law Civil Rights Clinic won the Clinical Legal Education Association’s Award for Excellence in a Public Interest Case or Project for its great work on the Ban the Box project.  This year, the work continues as the Clinic is pushing Ban the Box out into municipalities surrounding Charlotte, as well as persuading private companies to adopt the same policies.  The Shriver Center posted a wonderful synopsis of the Clinic’s work with Ban the Box, giving the Clinic well-deserved national recognition.

Check out this link on the Shriver Center website to read more about how Ban the Box is helping the Charlotte community.


I Am Not My Record

March 13, 2014

By Brittany Moore

Four and a half years ago former Civil Rights Clinic (“CRC”) members initiated a project called Ban The Box (“BTB”) in an attempt to persuade the City of Charlotte (“City”) to remove the question on initial employment applications asking about an applicant’s criminal history. On March 1, 2014, we accomplished that goal.[1] This blog will take you through what BTB is, the history of the BTB movement in the City, the future of Ban The Box in North Carolina, and my personal reflection on BTB and the recent outcome.

What is BTB?

BTB is a grassroots movement that began in 2004 in California by encouraging public and private employers to remove the application question that asks, “Have you ever been convicted of a crime other than minor traffic offenses.” This postpones inquiry into an applicant’s criminal history until later in the hiring process.

BTB does not propose that employers mandated by law to conduct criminal background checks for the particular position, for example police officer, remove the question from their applications nor does it propose that employers never be allowed to conduct a criminal background check.

The purpose of the BTB movement is to level out the playing field for job applicants who have a criminal history. Removing the conviction inquiry box from job applications allows the applicant to be considered objectively for a position based upon their qualifications.  As a result a person who would otherwise be qualified for a job, absent their criminal

 history, is given an opportunity to be interviewed and demonstrate to the potential employer they are both qualified and rehabilitated. Another goal removing the box achieves is removing the mental barrier experienced by those who have a criminal history when they are applying for jobs. Many people have said they feel as though their application is thrown in the trash or not considered because they have checked the box when it is being reviewed next to an applicant who does not have a criminal history, and unfortunately this may actually be the case. To date, over fifty cities and municipalities have BTB, six of these are in NC, including Charlotte, and ten states have adopted statewide BTB ordinances.[2]

 

CRC and BTB

LaWanna Mayfield, All Of Us Or None, MOURN, local business, and individuals with criminal histories; who took on BTB in an effort to persuade the City of Charlotte to BTB.  Research indicates there are three major issues affecting Charlotte: homelessness, recidivism, and unemployment.[3] The students reached out to the community regarding BTB and rapidly gained support. On February 27, 2013, the CRC and over one-hundred community members and representatives from local organizations and businesses, wearing the BTB red, rallied and spoke in an attempt to persuade the City Council to send BTB to the Economic and Development Committee (“Committee”) for further review—which it did by a six to four vote.[4] Organizations and businesses in attendance included Changed Choices, Pasta & Provisions, Democracy NC, Action NC, Charlotte Community Justice Coalition, and Center for Community Transitions (“CCT”), just to name a few. Unfortunately, after reaching Committee, BTB lost some momentum generated at the Council Meeting in February and did not have enough votes to get out of Committee and into the City ordinances.In 2009, the CRC clinic members were part of a coalition which included CCT, 

Disappointed at the lack of support generated for BTB in Committee, Brittany Moore, Cleat Walters II, Isaac Sturgill, and Erik Ortega (“The Group”) reconvened to strategize and find a new way to bring BTB back to the forefront of the City’s mind. On November 26, 2013, The Group and a citizen affected by the box met with Charlotte City Manger Ron Carlee, Assistant City Manager Ron Kimble, and Director of Human Resources Cheryl Brown. The Group provided statistics to Carlee, Kimble, and Brown showing that 190 of 203 persons who utilized CCT’s assistance in obtaining a job maintained that job and did not recidivate, showing a mere 6% recidivism rate compared to Mecklenburg County’s recidivism rate of 37%. The City already practices progressive non-discriminatory policies, as they currently employ persons with a criminal history, so The Group stressed that by BTB the City would be affirmatively demonstrating this to the citizens.

A citizen personally affected by the box gave some insight into the barriers faced by persons with criminal histories when applying for jobs. The box creates a mental barrier to those with criminal histories in search of a job discouraging them from applying when forced to check the box. Applicants with a criminal history are also discouraged, after applying and checking the box, when an initial interview is not extended. On March 1, 2014, the City removed the box from the City’s job application thereby removing one initial barrier in obtaining employment and encouraging those with criminal histories to actively seek employment and not recidivate.

Civil Rights Clinic Helps Ban the Box

Future of BTB

Students in the CRC are currently planning on lobbying surrounding counties to BTB in an effort to support taking BTB statewide in NC. Additionally, the CRC will be lobbying for private companies to also ban the box, following the lead of Target Corporation,[5] who enacted a BTB policy in 2013 and is the largest privately owned company to date to do so. This would significantly increase employment opportunities for those with prior convictions. Stay tuned to the CRC Blog to follow the expansion and growth of BTB.

Personal Reflection

I began working on BTB through the CRC in August 2013, a slow period in the project. After learning BTB did not have enough votes to get out of Committee, it was a little discouraging so we had to find a way to either regenerate the momentum gained in February 2013 or abandon the project. The latter was not an option because of the countless hours put into the movement so far in Charlotte and the sheer number of persons impacted by the movement. So I began working with the CCT, Erik, Isaac, and Cleat on this project and was honored to do so. Isaac and Cleat were among the initial members to begin BTB and it is humbling to watch their hard work and initial research pay off. Additionally, working with Erik at CCT and the continuous support and resources he provides to persons affected by the box is remarkable. In my short time working on this project I have become heavily invested in the outcome, progression, and future of BTB in NC and nationwide. I cannot wait to see what the future holds for the BTB movement and charge you all to become involved and be a part of something that millions can benefit from.


 


Ban the Box in the News

April 21, 2013

Over the past two months public dialogue about Ban the Box has increased, spurred on by the Charlotte City Council’s decision to send the issue to the Economic Development Committee.  Several local media outlets exposed the issue to a wider audience, and helped Charlotteans begin to understand the importance and details of the proposed ordinance.

Creative Loafing highlighted the contributions of Councilwoman Mayfield and the Civil Right Clinic in getting the City Council to consider the needs of the thousands of Charlotteans who have conviction histories and are looking for work.  Councilwoman champions ‘Banning the Box:’ Spearheaded by LaWana Mayfield, job application question regarding prior convictions debated in city committee.

The Charlotte Observer ran an editorial by Civil Rights Clinic member Cleat Walters III, which highlighted the benefits of the ordinance to the City.  Banning ‘the box’ eliminates unfair obstacle to jobs

Unfortunately, not all of the stories in the media were accurate.  While we all have sympathy for the family and fiance of murder victim Danielle Watson, who was killed during a robbery inside the Flying Biscuit, WBTV’s story highlighting his opposition to Ban the Box “Murder victim’s fiance outraged over bill to remove “felon” question from job application” fails to identify the fact that the ordinance does not prohibit criminal background checks for job applicants.

Hopefully, Charlotte will follow cities like Richmond that recently enacted a similar ordinance as reported by The Richmond Times-Dispatch.  Richmond City Council unanimously passes ‘ban the box’ ordinance.

Ban the Box is slated for discussion during the May 2nd meeting of the Charlotte City Council’s Economic Development Committee.  The coalition hopes the  meeting room CH-14 in the Government Center will be packed when they consider this important measure at 12pm that day.


Observer Ban the Box editorial

March 26, 2013

Here is a link to the Ban the Box editorial posted in today’s Charlotte Observer.


Charlotte City Council Kicks the Box to Committee for Further Study

March 6, 2013

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At the February 27th  Charlotte City Council meeting, Charlotte School of Law Civil Rights Clinic students, along with over a hundred community members and representatives from local organizations and businesses including Changed Choices, Pasta Provisions, Democracy NC, Action NC, Charlotte Community Justice Coalition, and Center for Community Transitions rallied, spoke, and displayed signs while donning the Ban the Box movement’s symbolic red in order to persuade the Council to send the Ban the Box initiative to Committee for further review—which it did by a six to four vote.  The vote represented a small first step in favor of the Coalition’s more than four year effort to convince the City to reform its hiring practices concerning individuals with conviction histories. While the City does have a non-discrimination policy concerning conviction histories, its job applications still have the “box” requiring that an applicant disclose a conviction history before the  City makes a determination that the individual is qualified  for the  job.  The key provisions of the Coalition’s proposed ordinance (drafted by students from the Civil Rights Clinic), removes the conviction history question from the initial job application, and permits a background check only after the city makes a conditional offer of employment; if the City determines the conviction disqualifies the applicant, the applicant will have a chance to explain why their conviction history shouldn’t disqualify them

The Signs of Our Times

The meeting itself was a model of grassroots organizing. Prior to it, hundreds gathered in the Government Center’s lobby. The excitement and tension in the air was palpable. Clinic students Cleat Walters III, Hailey Strobel, Emily Ray, Lindsey Engels, Katie Webb, Isabel Carson, Brandy Hagler, Daniel Melo, and Professor Jason Huber helped rally the Coalition and distribute signs. At 6:15 security opened Council Chambers’ doors and Coalition members filed in, overflowing into the balcony areas.  During the opening convocation, Mayor Anthony Foxx played excerpts from a speech by Dr. Martin Luther King Jr. Foxx also read two ceremonial resolutions before he moved to the Citizen’s Forum portion of the meeting.  The Coalition reserved six speaker spots through the efforts of Clinic student Cleat Walters III, who was also one of the primary organizers and leaders of the Coalition.

Speaking in a Sea of Red

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Isaac Sturgill, a former Clinic student, who four years ago began to tackle this issue and who is currently a Legal Aid of North Carolina attorney, was the first to speak. He began by asking all Ban the Box supporters to stand—almost everyone in the room rose to their feet in a sea of red, holding their signs in silent solidarity. Mr. Sturgill then went on to explain how Ban the Box will benefit the community by reducing recidivism and encouraging persons with conviction histories to obtain employment.Image

Mia Hines, the Vice-President of Goodwill Industries of the Southern Piedmont, followed Mr. Sturgill. Ms. Hines discussed the hiring practices of Goodwill and the make-up of their workforce. She stated that Goodwill practices the highest level of due diligence in their hiring practices, but emphasized that it does not use conviction histories to screen out applicants. To emphasize this fact, she recounted that individuals with conviction histories compose 30 percent of Goodwill’s workforce. She also explained to Council that Goodwill’s hiring practices mirror the proposed hiring practices of Ban the Box.

Eric Ortega, program director for Charlotte’s Center for Community Transitions, spoke next discussing the 450 individuals with prior convictions that have participated in the Center’s rehabilitation program in the last six months. He said that these individuals seek to better themselves, redefine who they are, and move forward. He expressed the reasonable concern and fear felt by many when faced with the Box—that employers will toss those applications with the Box checked aside, automatically filtering them out. According to Ortega, last year the Center tracked 200 people for a year and found, after obtaining employment with the Center’s assistance, that 190 of the 200 were still employed and had not been rearrested.  He emphasized the significance of 190 people paying taxes and contributing to their families and Charlotte’s economy.

Empowering through Employment

Tommy George followed Mr. Ortega to podium. Mr. George is the owner of a local business called Pasta Provisions, which regularly employs people with conviction histories dedicated to making themselves better. He expressed how the Box gives fear to some and anxiety to others. He stated that employers should ask about convictions during the interview process, allowing applicants to explain about their past discretions. Mr. George acknowledged that the City of Charlotte is an Equal Opportunity Employer, committed to fairness, but noted that the Box is “redundant” and asked that the City take a step forward to solidify its commitment to equality by Banning the Box.

ImageMonique Maddox, Catering Manager with Second Helping, who has a conviction history, introduced herself from behind a Ban the Box sign, covering her face to symbolically demonstrate the barrier put between individuals with conviction histories and employers because of the Box. She went on to explain that this barrier prevents employers from seeing the person behind the Box. She requested that the City take the lead on implementing this policy so deserving people have an opportunity at a second chance.

The final speaker, Henderson Hill, the current Executive Director of the Federal Defenders of Western North Carolina, a member of the Charlotte Community Justice Coalition, and a 32-year Charlottean civil rights attorney and activist, asked the Council to look at individuals as returning citizens, rather than inmates, felons, and convicts. Mr. Hill, drawing on his extensive experience working with individuals with conviction histories, and citing the excerpts of Dr. King’s speech from earlier in the meeting, called on the Council to judge people by the “content of their character.” Mr. Hill went on to say that through this proposal, the City can use its posture as an employer of over 6,500 people, to affirmatively express that looking at the content of someone’s character and evidence of rehabilitation is more important than a box on an application. Mr. Hill closed by saying that mass incarcerations, which are connected to national and state policies and not of the City Council’s doing, have a very real effect on the community and Ban the Box is one way to address this effect.

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A Motion to Move Forward

After the speakers finished, Councilperson Lawana Mayfield motioned to have Ban the Box studied by the Economic and Development Committee. Councilperson John Autry seconded the motion.

The Council then proceeded to discuss the motion. Councilperson Warren Cooksey expressed concerns about hiring for certain jobs, that the City already had an anti-discrimination policy in place, and that the initiative was “a solution in search of a problem.” Councilperson Michael Barnes voiced his opposition to the motion by saying that before adopting Ban the Box, the state legislature should pass a bill providing immunity to municipalities which adopt Ban the Box. At the request of Councilperson Barnes, City Attorney Robert Hagemann briefly discussed a previously circulated Human Resources on the issue, and went on to say that immunity is only one concern and reiterated that Ban the Box implicates several issues.  Councilperson Claire Green Fallon  commented that maybe the ordinance’s focus should be on the smaller demographic of individuals convicted of marijuana possession.

Next, Councilperson Andy Dulin began by discussing how he provided job opportunities to people with conviction histories when he was a private business owner. However, Mr. Dulin stated that he believed that his responsibilities to his constituency required him to oppose the motion. Councilperson Beth Pickering was the first to speak in favor of Ban the Box. She expressed that her primary objective is to see that everyone has the opportunity to work. Ms. Pickering expressed the desire to explore Ban the Box more and supported the motion to go to committee which fomented a small eruption of applause from the Coalition.

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Finally, Councilperson Mayfield, a Ban the Box supporter long before her City Council election, spoke passionately in favor of Committee referral.  Noting, in response to Councilpersons Cooksey, Barnes, and Dulin, that the ordinance does not prohibit background checks, nor does it require the city to hire individuals with conviction histories. Rather, she said, it simply gives all applicants a fair chance. She recognized the City’s existing non-discrimination policy, and expressed her belief that studying and adopting the proposed ordinance would further support that policy.  She also discussed how cities like Durham, North Carolina amongst others have successfully adopted similar Ban the Box ordinances and expressed her desire to keep Charlotte a “first-class city.”

A Kick for the Win

Mayor Foxx then requested that all those in favor of the motion raise their hands, and the room fell quiet. Councilpersons Autry, Mayfield, Mitchell, Fallon, Howard, and Pickering raised their hands. One could feel every mind in the room counting and re-counting. Six votes in favor.

No one moved or made a sound.

“All opposed?”

Councilpersons Cooksey, Barnes, Kinsey, and Dulin raised their hands. Four votes.

Mayor Foxx the declared the motion referred to committee for further study. The audience, before filing out, cheered and applauded Council for their decision. The enthusiasm was so energetic in the lobby that security politely asked the exiting crowd to quiet down. There was an abundance of smiles, hugs, handshakes and congratulations to all for a small but significant victory. Ban the Box will undergo study in the Economic and Development Committee. Throughout this process, the Coalition will continue to raise support and awareness, Clinic members will attend the Committee meetings, and the Coalition encourages everyone to continue to support and educate the community about Ban the Box.

If you are interested in working with the Coalition or have any questions please contact Cleat Walters III at waltersc@students.charlottelaw.edu or the Charlotte School of Law Civil Rights Clinic at civilrightsclinic@charlottelaw.edu

Mr. George, who eloquently quoted Ralph Waldo Emerson during his address to City Council, provides an appropriate final thought:

“What lies behind us and what lies before us are tiny matters compared to what lies within us.”

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By: Daniel Melo, Brandy Hagler, and Cleat Walters III


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