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.


Homeless Court Initiative Taking Shape in Charlotte

December 19, 2014

Homeless Courts, which are alternative-sentencing programs for those charged with a status offense due to their lack of housing, have been established in many major cities across the United States.  Homeless court programs began in San Diego in 1989, and have since been the model program for the other cities.  The American Bar Association, which adopted a model policy in 2006 for homeless courts, describes the purpose of the program best:

“[t]o counteract the effect of criminal cases pushing homeless defendants further outside society, this court combines a progressive plea bargain system, an alternative sentencing structure, and proof of community-based shelter program activities to address a range of misdemeanor offenses. Homeless courts expand access to justice, reduce court costs, and help homeless people reintegrate into society and lead productive lives.”

Over the past several months, a coalition has begun to establish a homeless court here in Charlotte.  With the help of the Civil Rights Clinic, this group has been researching, developing, and gathering community interest.  Each city has their own unique model tailored to the needs of their clients, and we are focused on doing the same.  For more information about our efforts or to join the coalition, please email jhuber@charlottelaw.edu.  For more information on homeless courts across the country, see:

For an American Bar Association publication on its adoption of homeless courts, see: http://www.americanbar.org/content/dam/aba/migrated/homeless/PublicDocuments/HCP_Manual.authcheckdam.pdf.

Our coalition hard at work at the CSL Civil Rights Clinic.

Our coalition hard at work at the CSL Civil Rights Clinic.


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.


 


Road To Successful Re-Entry: From Inmate to Taxpayer

October 23, 2012
  • Who: Hosted by Charlotte Community Justice Coalition
  • What: Panel discussion about Re-entry issues in North Carolina featuring individuals from all aspects of the Criminal Justice System.
  • When: October 25, 2012; 5:30pm-8:00pm
  • Where: Charlotte School of Law, Suttle Ave. Campus, Rm. 106

As a part of the larger, two-day Access to Justice Symposium at Charlotte School of Law, the Charlotte Community Justice Coalition (Coalition) will host a panel to educate students and community members about Re-Entry.  I had the opportunity to speak with Professor Cindy Adcock, Director of Experiential Learning & Associate Professor at Charlotte School of Law and a member of the Coalition, about the group and the upcoming panel discussion.

On their website, the Coalition provides the following statement: “The CHARLOTTE COMMUNITY JUSTICE COALITION (formerly the Charlotte Coalition for a Moratorium Now) advocates for effective, humane, and restorative solutions to pressing dangers and stressors in our community, such as crime, mental illness, and poverty. CCJC seeks to be a catalyst in bringing to bear the combined power of organizations and stakeholders in support of initiatives designed to enhance community justice in the Greater Charlotte area.”

Professor Adcock describes the Coalition as “an umbrella group,” designed to identify and coordinate different participants in the Charlotte community to tackle the myriad issues related to the Criminal Justice system.  What started as a group focused exclusively on obtaining a moratorium on the death penalty in North Carolina has expanded to include a vast array of criminal justice initiatives, including individuals’ successful reintegration into society following incarceration.

What is “re-entry?”  Re-entry refers to a convicted offender’s transition from life in prison (or jail) back into the community.  Successful re-entry describes the individual becoming a law-abiding and contributing member of society. (See Bureau of Justice Assistance for more information)

Education about and access to resources are vital components of successful re-entry.  Barriers to successful re-entry, including employment, often result in recidivism. The Coalition is devoted to community education as well as developing practical solutions to many criminal justice issues.  The Road to Successful Re-Entry event will focus on educating attendees on the statistics and realities regarding re-entry as well as identification and discussion of practical considerations moving forward.  Panelists will represent all branches of the re-entry process, including (as posted on Rufus):

  • Henderson Hill, Executive Director, Federal Defenders of Western North Carolina (Moderator)
  • Greg Forest, Chief U.S. Probation Officer, U.S. Probation, Western District of North Carolina
  • Rev. Dr. Madeline McClenney-Sadler, Founder/President, Exodus Foundation
  • Erik Ortega, LifeWorks! Program Director, Center for Community Transitions
  • James M. Talley, Jr., Of Counsel, Horack Talley
  • Jamal Tate, Founder, Man Up: A Minority Male Mentoring Program
  • Derek Wilson, Adult Program Manager, Mecklenburg County Sheriff’s Office

The Civil Rights Clinic is especially excited about this event.  Members of the Clinic will be attending to learn more about the Re-Entry Process and how our projects may provide an avenue for successful Re-Entry to formerly incarcerated individuals.  Additionally, students enrolled in PEP II can receive double credit for attending (see Rufus for more information).

If you are interested in more information regarding the Charlotte Community Justice Coalition, visit their website at, www.charlottejustice.org.  If you are interested in attending the other symposium events please see the Rufus Calendar in addition to flyers around campus.

We look forward to seeing you at the panel next week!

By: Emily Ray


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