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Ban the Box: Employment Discrimination and the Ex - Offender

In: Social Issues

Submitted By amohan73
Words 14524
Pages 59

I. INTRODUCTION………………………………………………………………………… 3
INCREASING .............................................................................8
OFFENDERS ................................................................. 10

MINORITIES ………………………………………………………………………………… 13


CONVICTIONS .................................................. 13
RECORD ....................................................................................................................... 15
CHECKS………………………………………………………………………………………… 18
PRACTICES ..................................................................................................................... 18
PRACTICES…………………………………………………………………………………… 22
RAILROAD...................................................................... 24
AUTHORITY ............... 26
3. E.E.O.C. V. BMW
4. E.E.O.C. V.
DOLGENCORP ........................................................................................... 29
E.E.O.C. ............................................................................... 30


A. REFLECTION ………………………………………………………………………… 31
……………… 33
BOX......................................... 35
BOX ............................................... 38
RELFLECTION .................................................................................................... 40

Title VII of the Civil Rights Act of 1964 was enacted in an effort to ban employment discrimination based on race, color, sex, or national origin. The E.E.O.C. has long preserved this provision, but only recently has issued an updated Enforcement Guidance in reference to the use of arrest and conviction records for employment decisions. 1 The Enforcement
Guidance, while late in addressing the modern, amplified rate of incarceration, has finally brought much needed scrutiny to how employer hiring and screening practices may handicap former offenders. Incarceration rates have more than tripled since the mid-1980s - rapidly increasing with each year, and the majority of these ex-offenders remain jobless or return to criminal activity. 2 The culmination of a conviction and the fact that the majority of America’s


E.E.O.C. Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964, E.E.O.C. Regulations & Guidance. (Apr. 25,
2012), (this document looks to guide employer actions in regards to use of convictions and arrests in employment decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e)

Jeanna Smialek, Putting Released Prisoners Back to Work, BLOOMBERG BUSINESS WEEK.
(Feb. 6, 2014), See Data Bureau of Justice Statistics (428,300 in 1992 to 637,411inmates released from state and federal prisons)


offenders are African-American or Hispanic seemingly excludes these populations from the work place as they carry both stigmas of a criminal record and minority status.3
While extensive research shows that a criminal conviction coupled with incarceration lowers employability, the findings neglect to place appropriate responsibility on the decreased employment prospects available. 4 Unfortunately, employers show a tendency to prefer individuals who have no criminal record without allowing those who do, a chance beyond the initial application. Screening processes include applications that question whether or not the candidate has ever been charged or convicted of misdemeanors or felonies – each application is tailored specifically to employer preference.
Recently, several employers have faced legal ramifications for their employment practices. In 2013, EEOC filed suit against two major employers for implementing criminal background policies that resulted in terminating employment as well as screening potential employees out of the candidacy pool. The first suit was filed against BMW Corporation: alleging BMW “disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity” after contracted employees were forced to re-apply to retain their positions and were denied rehire because of criminal convictions. 5 The second major employer the EEOC filed suit against was against the Dollar
General Corporation, in which they alleged that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against African
Americans. 6 Here, an applicant’s job offer was revoked because Dollar General deemed her conviction a type that disqualifies her from employment for 10 years. Several other suits have been initiated because of discriminatory hiring policies.


Edward Blakemore, Mandatory Minimum Sentencing and Black Males, RACE, RACISM, AND
THE LAW L. BLOG (Date Inaccessible), option=com_content&view=article&id=911:s98blake-1&catid=138:sentencing&Itemid=155. 4

John Schmidt & Kris Warner, Ex-Offenders and the Labor Market (2010), documents/publications/ex-offenders-2010-11.pdf 5

E.E.O.C. v. BMW Manufacturing Co., No. 7:13-cv-01583 (S. Carolina. filed June 11, 2013).


EEOC v. DolGenCorp L.L.C., No. 1:13-cv-04307 (ND. Illinois. filed June 11, 2013).


The heightened scrutiny of employment practices has paved the way for remedial measures such as the “Ban the Box” Campaign.7 This campaign aims to persuade employers to remove from job applications the box that questions whether applicants have a criminal record. Instead, the background check will be conducted later in the process, after the candidate has had a chance to transcend the paper application and be humanized in the eyes of the employer.
The theme of this paper is to investigate the disparate treatment of ex-offenders and offer a reparative avenue. By not allowing ex-offenders a chance in the workplace, the U.S. economy and society suffers from the loss of eligible workers who have been turned into career criminals. First, this Article offers a legal history of employment discrimination in the
United States. Next, Part III will illustrate the condition of rapidly growing incarceration rates, what ex-offenders lose because of their conviction, and how the status quo background check creates a disproportionate exclusion in the workforce. Part
IV discusses the EEOC’s increased legal scrutiny of employers’ use of criminal background checks. Part V offers a supported measure to challenge ex-offender discrimination in the Ban the Box Campaign, and Part VI offers concluding points and a personal reflection. 


Under Title VII of the Civil Rights Act of 1964, discrimination on the grounds of an individual’s race, color, sex, national origin is expressly outlawed. 8 The enactment of this provision gave the American government the ability to regulate and redress scenarios where citizens were subjected to unlawful, discrimination. Title VII specifically addresses circumstances of discriminatory employment practices, preventing the presence of such


NELP Staff & Michelle Natividad Rodriguez, Ban the Box Resource Guide (November 2014), 8

Title VII of the Civil Rights Act of 1964, Pub. L. 88-352, § 78 Stat. 241 (1964).


methods. Title VII is invoked to ensure that all Americans can benefit from equality of access to work and treatment when applying. 9 42 U.S.C. § 2000 prohibits employer hiring practices that, or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or religion, sex, or national origin. 10 

In effect, this provision has created a standard for employers to be graded by when seeking to fill open positions. Contemporary times, coupled with the EEOC, have shown a different era in employment - employee rights and safety has been supplemented with judicial and congressional action. Several previously underrepresented and adversely affected classes now have voice, however, there remains a large group of workers who are regularly discriminated against: the ex-offender. Many states have enacted policies and standards that regularly disqualify ex-offenders from employment; ex-offenders have looked for resolution under Title VII to further employment interests of racial minorities who have been arrested, convicted, or incarcerated.11 Title VII alleviates harm from two types of discrimination: disparate treatment and disparate impact.
Although Title VII does not directly speak to employment discrimination on the basis of criminal history, those who have suffered from being passed over for work or lost jobs due to arrest or criminal records “pursue discrimination claims indirectly by alleging a racially disparate impact.”12 Disparate impact is a practice that is neutral by intent and implementation, but adversely effects individuals belonging to a protected class. Here, ex-


Unlawful Employment Practices, 42 U.S.C.A. § 2000e-2 (2014)



11 Alexandra

Harwin, Title VII Challenges to Employment Discrimination Against Minority Men with
Criminal Records, 14 Berkeley J. of Afr.- Am. L. & Pol’y (2012). Available at: http:// 12



offenders have argued, “that facially neutral inquiries about criminal records disproportionately disadvantage black, Hispanic, and other minority job applicants.”13 Other arguments settle on invoking disparate treatment. The United States Supreme Court has defined disparate treatment as discrimination in which “the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.”14 However, Alexandra Harwin has recently proposed an alternative argument offenders should be using to drive their suits. 15 Ms. Harwin believes that expert testimony should be sought to show how implicit bias factors into employer considerations of minority candidates with a criminal history.16 She suggests that this alternative would be more time efficient that searching through employment records for the existence of a similarly situated candidate.17
There are several avenues that can be utilized under Title VII to pursue an employment criminal background check discrimination claim. The legal spotlight has recently turned to the growing number of legal action taken on behalf of such claims. The increases in these claims are directly attributed to the immense ex-offender population that seeks gainful reentry to their communities.
Gregory v. Litton Systems is a notable case emerging from legal action taken on behalf of an ex offender, but it is one of the first wins for adverse use of a criminal record. Here,
Litton refused to hire Gregory because of his disclosure that he had been arrested at least 14 times. The Court found that Litton’s rejection of Gregory wasn’t predicated on national security or any consideration of his convictions. Additionally, the District Court found that there was enough evidence to support the finding that Litton’s purported racially-neutral questionnaire actually operated as a barrier in the employment of black applicants in far



Raytheon Co. v. Hernandez, 540 U.S. 44, 52, 13 AD 1825 (2003)(quoting Hazan Paper Co. v.
Biggens, 507 U.S. 604, 610 (1993)).

Harwin, 14 Berkeley J. of Afr.-Am. L. & Pol’y (2012).






greater proportion than white applicants. 18 Litton showed no reasonable business purpose for continuing to ask prospective employees about their arrest records. The district court accordingly found the practice to be in violation of the remedial legislation under which the action was brought. 19 Gregory v. Litton’s holding is looked to for guidance in circumstances where use of arrest records adversely impacts the applicants.20 Gregory would act as a catalyst for future legal action taken in defense of the ex offender.

The United States of America is a world leader in many respects: a renowned democracy, resilient economy, and respect of civil liberties. American citizens enjoy freedoms most parts of the world cannot even imagine. In pursuit of the American dream, immigrants are welcomed to an unparalleled work economy. However, not all things
American are worthy of praise. The United States accounts for 5% of the world’s population, but it incarcerates 25% of the world’s prisoners.21 Of the American population, it is estimated that 1 in every 31 adults is in jail, prison, or under a form of parole or probationary supervision. This “criminal” population accounts for 3.2% of the American population. 22 The
American incarceration trend wasn’t always such a substantial force. Merely 30 years ago, in
1980, incarcerated Americans amounted to roughly 500,000.23 Within the span of the next three decades, the prison population would see unimagined growth – from 500,000 to an


Gregory v. Litton Sys., Inc., 472 F.2d 631 (9th Cir. 1972)




E.E.O.C., Policy Guidance on the Consideration of Arrest Records in Employment Decisions under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982), E.E.O.C. (Sept.
7, 1990),

NAACP Criminal Justice Fact Sheet, (last visited Dec. 10, 2014).

Id. See generally Total Correctional Population, (last visited Dec. 10, 2014)

Id. See William J. Sabol, Heather C. West, & Matthew Cooper, Prisoners in 2008, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics (2008),


estimated 2.3 million. 24 According to the Sentencing Project, U.S. incarceration rates have seen a 500% increase in the last 40 years. 25 Reports on these statistics have projected a three percent rise in prisoners by 2018.26

After being confronted with these senseless numbers, constituents have no choice but to question the system – how has this happened? Why is such a significant number of the
American population behind bars? There are several polices that have been implemented that contributed, if not caused, such an unprecedented growth of American prisoners. For instance, the policies arising out of the War on Drugs have broad applicability and severely over penalize non-violent crimes. In 1980, the number of Americans incarcerated for drug offenses was roughly 41,000.27 By 2011, that number ballooned to more than half a million offenders.
In addition to the sharp drug polices, corresponding sentencing laws impose mandatory minimums to exercise continuous physical control over the offender’s freedom. In 1986, a drug offender spent 22 months in federal prison; by 2004, a federal drug offender can expect to serve 62 months in prison.

28 The

number of female inmates has risen at the same jarring

pace as the overall prison population. 29 Since 1980, the incarcerated female population has increased by 50%. This growth in female criminality is largely attributed both minor property crimes and the heightened scope of drug crimes. 30

In the face of all of this statistical data, the resounding question is how did so many




Fact Sheet: Trends in U.S. Corrections (2012), inc_Trends_in_Corrections_Fact_sheet.pdf. 26

Id. See The Pew Charitable Trusts, States Project a 3% Increase in Prisoners by 2018, PEW (Nov.
18, 2014),, (last visited Dec. 10, 2014).

Id. See Anthony Lewis, Abroad at Home: Breaking the Silence, N.Y. TIMES. (July 29, 2000), http:// 28





Id. See Stacey L. Mallicoat & Connie Ireland, Women and Crime: The Essentials 463 – 464 (SAGE
Publications., 1st ed. 2014).


American citizens end up incarcerated? There is a case to be made for stop and interrogate tactics, but the legislation and criminal codes are what cause incarceration. 31 Elected prosecutors, who are determined to maintain a high conviction rate, spend less time wondering about how can this offender succeed. Instead, they place bets on the length of time that will pass before the court sees the offender again. The problem is in the system, but the system is also capable of executing a remedy.
Presently, the estimated numbers of offenders completing their sentences and returning home is at least 600,000 per year – some statistics place this number even higher to nearly 700,000 annually. 32 After conviction and rehabilitative incarceration, ex offenders return to society with their hands still bearing metaphorical handcuffs. The criminal justice system penalized their offenses with believed, appropriate sanctions, but at the end of the consequential sentences, ex offenders a greeted with the loss of several civil rights. In
Tennessee, inmates lose their right to vote while incarcerated, and for some felony convictions, the individual may lose their voting rights indefinitely.33 Depending the type of conviction, the person may lose their right to bear firearms and various other federal benefits.

Ex offenders experience the deprivation privileged, normal lifestyles. But, reintegration proves harder than expected when they face the superficially, insurmountable task of finding gainful employment. Immediately, various statutory and regulatory sanctions prohibit those with convictions from numerous private and public sector occupations.35 For

Prison Policy Initiative: Incarceration Growth Causes, incarceration_rates_growth_causes/, (last visited Dec. 10, 2014).

Karol Lucken & Lucille M. Pointe, A Just Measure of Forgiveness: Reforming Occupational
Licensing Regulations for Ex-Offenders Using BFOQ Analysis, 30 L. & Pol’y. 46 – 72 (2008).

T.C.A. § 40-20-122; T.C.A. §40-29-201


Tennessee Ex-Offenders Resource Sheet (2009),

Lucken & Pointe, 30 L. & Pol’y. 46 – 72 (2008).


example, someone with a felony record can become an attorney, but can never be a security guard at a mall. 36 An individual convicted of a felony related to drug manufacture or distribution cannot work in nursing homes, regardless of the amount of time that has passed since conviction.

37 In

2008, the state of Florida demonstrated that its conviction record

restrictions eliminated nearly 40% of the available jobs.38
According to a 2003 study exploring when prisoners come home, many ex-offenders bore the burden of reentry because they were poorly rehabilitated. 39 The study shows that of the offenders leaving prison, “reportedly one-third will have received vocational or educational training, and one-fourth will have participated in substance abuse programs.
Fewer than 10% will have participated in a pre – or post prison release program, and twothirds will likely remain unemployed for up to three years after their release.”40 The inability to find employment post release sits at the nucleus of the failed ex offender reintegration problem. Lack of employment opportunities is the biggest contributing factor to recidivism. The
Bureau of Justice Statistics recently released a recidivism report on a study that initially commenced in 2005. 41 The study tracked prisoners who were released from 30 different states and followed their efforts to reintegrate. The researchers found that within three years, 67.8% of released prisoners were rearrested.42 Within five years, 76.6% of released prisoners were

Miriam Aukerman, Criminal Convictions as a Barrier to Employment, Mich. B.J. 1-3 (2008)


Id. See Miriam Aukerman, Collateral Consequences of Criminal Convictions: A Legal Outline for
Michigan, MCOLES Training Program (2008),
(This document was created for the Michigan Commission on Law Enforcement training program as an attempt to provide current and topical guidelines on offender reentry).



Karol Lucken & Lucille M. Pointe, A Just Measure of Forgiveness, 30 L. & Pol’y. 46 – 72 (2008) see also citing Joan Petersilia, When Prisoners Come Home (Oxford Univ. Press 2003).



Bureau of Justice Statistics on Recidivism, (last visited
Dec. 10, 2014).

Id. See Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, http://, (last visited Dec. 10, 2014).


rearrested. 43 And of those who were rearrested, 56.7% were rearrested by the end of the first year. Commenting on the report, Professor Deborah Koetzle concedes hardship the ex offender faces upon reentry: “In a lot of ways we set people up because we put them in prisons, which are coercive, violent environments that can have psychological impacts, and when they come out we put up a lot of barriers. We make it difficult for them to get jobs, to find housing.” 44 Additionally, in New York, studies show that 83% of recently released offenders who violate their probation were unemployed at the time of violation. 45 The New
York Bar Association has clearly stated that, “without employment these individuals cannot meet their own families’ basic needs; New York City’s probation commissioner went on to note that “research from both academics and practitioners suggest that the chief factor that influences the reduction of recidivism is an individual’s ability to gain quality employment.”46
When ex-offenders return home, they quickly realize that the incarceration period was only the beginning. With the loss of civil liberties, criminal records erasing even the remote possibility of obtaining certain jobs, the ex-offender may feel completely helpless and return to the community ridden with illegal activity just to find security or familiarity. When you find barriers at every turn and employment policies forbid you an opportunity for redemption, wouldn’t you return to what you know?


Id. See National Institute of Justice Recidivism Statistics, recidivism/Pages/welcome.aspx, (last visited Dec. 10, 2014)

Caitlin Dickson, America’s Recidivism Nightmare , THE DAILY BEAST (April 22, 2014), http:// (CUNY’s John Jay
College of Criminal Justice Professor Deborah Koetzle is an Associate Professor and Executive
Officer of the Doctoral Program in Criminal Justice. Her research interests center on effective interventions for offenders, problem-solving courts, and the use of social media by police departments). 45

Inimai M. Chettiar, Nicole Austin-Hillery, Thomas Giovanni, & Meghna Phillips, Comments of the
Brennan Center for Justice on the Enforcement Guidance of the U.S. Equal Employment Opportunity
Commissions, “Consideration of Arrest and Conviction Records in Employment Decisions under Title
VII of the Civil Rights Act,” BRENNAN CENTER FOR JUSTICE (2013), http:// 46

New York State Bar Ass’n, Re-Entry and Reintegration: The Road to Public Safety, Report and
Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings




Employers explain their pre-employment screening and application systems in great detail. Yet, when the question turns to the psychology behind hiring, employers tend to stay quiet. Employers hardly vocalize how criminal background checks effect how they view a candidate; typically, employers quickly reject applicants for having criminal records and never have time to form an impression. Economist Harry Holzer speculates on why employers may be reluctant to hire an ex-offender,
Employers might be unwilling to hire those with criminal records for many reasons - such as the risk of legal liability if a previous offender harms a customer or coworker, the risk of financial liability if the offender engages in theft, fear of personal violence, and the negative signals that a period of incarceration sends about their general skills of trustworthiness.47
While this may not be express, evidence can be found in the numbers. The Center for
Economic and Policy Research conducted a study on ex-offenders in the labor market and found deep losses to the American economy. 48
The C.E.P.R. concluded that having a prison record or a felony conviction greatly lowers ex-offenders prospects in the labor market. This is not because having a criminal record causes the depreciation of an individual’s work life or skill, rather the addition of a criminal record – whatever the conviction may be – decreases the applicant’s appeal. The
C.E.P.R. estimates, in regards to total male employment, that leaving this population unemployed has cost the U.S. employment rate to suffer by 1.5 – 1.7 percentage points.49

Harry J. Holzer, Collateral Costs: The Effects of Incarceration on the Employment and Earnings of
Young Workers (IZA Discussion Paper No. 3118, Oct. 2007)

John Schmidt & Kris Warner, Ex-Offenders and the Labor Market (2010), documents/publications/ex-offenders-2010-11.pdf 49



Translated to gross domestic product terms, the reduction in employment was so vast that it cost the American economy between $57 billion and $65 billion in output. 50 The study acknowledges that this specific population may consist of low productivity workers, due to lack of education or ill training, and even then, the projected output loss falls within the same
$57 to $65 billion spectrum.51 To add insult to injury, the United States annually spends at least $70 billion on maintain and expanding the corrections method. 52 On average, each state spends at least $31,000 to incarcerate one person for one year; the state’s incarceration spending spectrum starts as low as $14,603 per individual in Kentucky to an astounding
$60,076 in New York. 53
In a document C.E.P.R. released on its findings, an employer survey “gauging employer willingness to hire a variety of workers with various stigmas – such as have a criminal record... – into the job filled by the last work hired at the firm.” 54 In a follow-up survey, the same employers were asked further questions, inquiring about: “the actual hiring of ex-offenders, as well as self reported willingness to do so.”

55 Based

on the responses, the

survey concluded that employers reported that they were less likely to hire ex-offenders. 80%
- 90% of employers reported that they would definitely or probably hire a candidate who received welfare, only had little work experience, or other stigmatizing characteristics. 56 Only


Id. See The State of Corrections: Fact Sheet,
GCO-prisoner-reentry-fact-sheet-2014.pdf (last visited Dec. 10, 2014).



Inimai M. Chettiar, Comments of the Brennan Center for Justice on the Enforcement Guidance of the U.S. Equal Employment, Brennan Center for Justice (2013), default/files/legacy/USCCR%20EEOC%20Guidance%20Comments.pdf 53

Id. See Vera Institute of Justice, The Price of Prison: What Incarcerations Costs Taxpayers (Mar.1,







40% of employers said they would definitely or probably hire a candidate with a prior criminal conviction for a position dealing with customers or money. 57
Holzer’s abovementioned speculation resonates with the C.E.P.R.’s findings – employers prefer and actively seek out employment candidates who do not have a criminal background. Yet, most employers are not aware of the benefits that attach when hiring a formerly incarcerated person. 58 Economically, many incentives have been made available to an employer who hires an ex-offender, such as: government bonding programs, work opportunity tax credit, welfare-to-work programs, and first source employment agreements. 59
As stated earlier, there are roughly 2.3 million American currently incarcerated.
Within this population, there is a great racial divide. More than 60% of current inmates are of color. According to The Sentencing Project, a black male is six times more likely to incarcerated than a white man, and two and half times more likely than a Hispanic male. 60 This likelihood increases with older black men: for black males in their thirties, 1 of every 10 is in prisoner jail. 61 A simple incarcerated population statistical breakdown demonstrates Black and Hispanic men are arrested, convicted, and incarcerated at a rate



United States Department of Labor Employment & Training Administration, Work Opportunity Tax
Credit,, (last visited Dec. 10, 2014) (The Work
Opportunity Tax Credit (WOTC) is a Federal tax credit available to employers for hiring individuals from certain target groups who have consistently faced significant barriers to employment – ex felons are a designated group).

NAACP, The Successful Reentry Project: Working Towards Justice, Dignity and Redemption,
NAACP (2009),; see Department of
Employment Services First Source Employment Program,, (Last visited Dec. 10, 2014) (First Source ensures that city residents are given priority for new jobs created by municipal financing and development programs in Washington, D.C.).

The Sentencing Project, Incarceration, (2013), page.cfm?id=107; See Paul Wagner, Incarceration is not an Equal Opportunity Punishment, PRISON



substantially higher than that of white men. Black and Hispanic men also tend to be implicated in violent or predatory crimes more than any other demographic – this alone carries an unshakeable stigma. Within their lifetimes, it is projected that one in three black men and one in six Hispanic men will be incarcerated. 62
Employment disadvantages that are already bleak for ex-offenders, prove to be even more arduous for black and Hispanic men. With the increasing employer access to and reliance on background checks, blacks and Hispanic will be disproportionately excluded from the workforce. These statistics do not mean that blacks and Hispanics are necessarily committing more crimes than whites. The implementation of standards such a “Stop and
Frisk” and the policies stemming from the war on drugs have targeted blacks and Hispanic men. The social stereotype purports the image that black and Hispanic males typically engage in illegal activity and thus, they are subjected to more criminal suspicion. The New York Civil
Liberties Union analyzed data on local police stops and interrogations. According to their findings, nearly five million people have been subjected to such practices since 2002.63 After breaking down the demographics of who were most affected by stop and interrogate measures, each year since 2002, blacks and Hispanics have accounted for at least 80% of stops.64 Most surprisingly, 9 out of 10 times a person is stopped – they have only engaged in legal behavior.
More blacks and Hispanics are incarcerated than any other demographic - combined or separately. Discussions on why this is have been ignited each time statistics are released.
Some agree that the police target minorities because of social stigma while others present their own opinions. Regardless of which contributing factors are correct, blacks and Hispanics


Harwin, 14 Berkeley J. of Afr.-Am. L. & Pol’y (2012); See The Sentencing Project, Facts about
Prisons and Prisoners, (2007), prison_facts.pdf 63

New York Civil Liberties Union, Stop and Frisk Facts, NYCLU (Date Inaccessible), http:// 64

Id. See Erica L. Smith, Matthew R. Durose, & BJS Statisticians, Characteristics of Drivers Stopped by Police, 2002, BUREAU OF JUSTICE STATISTICS (2002), cdsp02.pdf 15

carry the presumption of engaging in criminal activity.65 Coupled with the unfortunate statistics that members of each population have already been incarcerated or face future imprisonment, blacks and Hispanics feel the most adverse judgment from employers.
In a study funded by the DOJ’s National Institute of Justice, Harvard and Princeton researchers conducted an audit to illustrate the effects of a criminal record on hiring decisions and employment prospects of minorities.66 The study primarily focused on how a criminal record affected job seekers of different races. 67
In the first study, pairs of blacks and whites were matched and placed as entry-level job seers to test the impact of incarceration on employment outcomes and whether there was difference between races. 68 The study found that whites with a criminal record were half as likely to receive a callback as whites without a record (17% versus 34%). 69 Conversely, blacks with a criminal record were nearly a third as likely to receive a callback as blacks without a record (5% versus 14%). Yet what troubled the researches most, was the finding that whites with a criminal record had a higher chance of receiving a callback than blacks without any record. 70
The researchers then replicated the study but with Latino testers. Once again, they found white testers with similar job qualifications and criminal histories received job offers at


Peter DeAngelis, Racial Profiling and the Presumption of Innocence, 1 NETH. J. OF LEGAL.
PHIL. (2014).

Kimani Paul Emile, Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment
Discrimination in the Information Age, VIRGINIA LAW REVIEW (2014), http:// 67



Id. See Devah Pager et al., Sequencing Disadvantage: Barriers to Employment Facing Young Black
Men and White Men with Criminal Records, 623 Annals Am. Acad. Pol. & Soc. Sci. 195, 199 (2009); see also James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U. State.
Thomas. L.J. 387, 420 (2006) (Jacobs describes criminal records as carrying a stigma of “negative curriculum vitae”).

Id. See Pager, Criminal Record, supra note 25 at 946.


Id. See id. at 957, 958 fig 6.


higher rates than black and Latino testers.71 Additionally, when testing white applicants with felony convictions, whites were more likely to receive a job offer than the black and Latino participants without criminal records. 72 The study concluded with its findings suggesting
“while job candidates with criminal records are disadvantaged in the labor market relative to applicants with no criminal background, racial minority status combined with a criminal record creates a pronounced and particularly formidable socially stigmatic effect.”73
The presence of the social stigma cannot be denied, and as the above study found, together with a criminal record, this perception becomes a barrier that is hard to navigate. In this technologically advanced age, employers have unlimited access to all and any information that can be used to corroborate their prejudices or just solidify the attributed minority stigma.


President John F. Kennedy signed the Equal Employment Opportunity Commission
(E.E.O.C.) into effect in 1961. The E.E.O.C.’s mission is to eliminate illegal discrimination in the workplace. The primary methods the E.E.O.C. uses to satisfy this goal are conciliation, education, outreach and technical assistance. 74 In 1972, Congress granted the E.E.O.C. litigation enforcement authority. Now, the E.E.O.C. incorporates each method in their pursuit of ending illegal discrimination in the workplace.75



Id. See Devah Pager et al., Discrimination in a Low-Wage Labor Market: A Field Experiment, 74
Am. Soc. Rev. 777, 785-86 (2009).



E.E.O.C., 35 Years of Ensuring the Promise of Opportunity, history/index.html, (last visited Dec. 10, 2014).

Id. See U.S. Equal Employment Opportunity Commission, Performance and Accountability Report
2014, (last visited Dec. 10, 2014).


In the 1987, the E.E.O.C. released an enforcement guidance on hiring practices involving criminal histories. This edition of the guidance included a policy that allowed employers to present data showing that their practices would not adversely affect blacks and
Hispanics in the employer’s actual pool as to that particular crime. This policy was superseded as the enforcement guidance updated.76 Another policy that was not seen in the updated enforcement guidance was the E.E.O.C.’s “E-RACE” initiative. This concept was intended to add greater scrutiny to employer practices, for example, by making hiring decisions based on “names, arrest and conviction records, employment and personality tests, and credit scores. 77
By 2012, the E.E.O.C. released its latest enforcement guidance update on the consideration of arrest and conviction records in employment decisions under Title XII of the
Civil Rights Act of 1964. In this edition, the guidance starts off with a statement that, in some occasions, an employer’s use of an individual’s criminal history in making employment decisions may violate Title VII’s prohibition against employment discrimination. 78 The guide provides direction for ex-offenders who want to pursue claims against their employers, informing readers that the focus is on employment discrimination based on national origin and race. Additionally, the guidance discusses analysis for both disparate impact and disparate treatment. The E.E.O.C. cites national data found in support for criminal record exclusions having a disparate impact based on national origin or race, thus providing the grounds for the
Commission to investigate Title VII disparate impact charges challenging criminal record


U.S. Commission on Civil Rights, Assessing the Impact of Criminal Background Checks and the
Equal Employment Opportunity Conviction Records Policy, U.S. COMMISSION ON CIVIL RIGHTS

Id. See E.E.O.C, The E-Race Initiative (Eradicating Racism and Colorism from Employment), http://, (last visited Dec. 10, 2014).

Office of Legal Counsel, EEOC Enforcement Guidance: Consideration of arrest and conviction records in employment decisions under Title XII of the Civil Rights Act of 1964, E.E.O.C. LAWS,


exclusion.79 The E.E.O.C. outlines types of evidence that may be used to prove claims against an employer, including but not limited to: biased statements, inconsistencies in the hiring process, similarly situated comparators, employment testing, and various other statistical evidence. 80
The guidance also provides direction for employers, delineating two circumstances in which they think the employer’s job related and business necessity defenses will always prevail: 1) The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or
2) the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.81 The employer’s policy must then provide an opportunity for an individualized assessment for those identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.82
The most important section of the enforcement guidance is E.E.O.C.’s suggested employer best practices.83 Here, the E.E.O.C. recommends that employers eliminate practices that exclude people from employment based on their criminal record, as well as provide the appropriate training to managers and supervisors on Title VII prohibition of employment discrimination. The E.E.O.C. also proposes that employers develop deeply narrow policies

Id. See Office of Legal Counsel, Title VII/ADEA/EPA Division, & Cari Dominguez, Section 15:
Race and Color Discrimination, E.E.O.C. COMPLIANCE MANUAL HOLDERS, http://, (last visited Dec. 10, 2014).



Id. See Questions and Answers about the EEOC’s Enforcement Guidance on the Consideration of
Arrest and Conviction Records in Employment Decisions under Title VII, laws/guidance/qa_arrest_conviction.cfm?renderforprint=1, (last visited Dec. 10, 2014).

Id. See (Author Unknown), E.E.O.C.: A Year in Review, PRECISION STAFFING L. BLOG (Upload date unknown),

Id. See (Author Inaccessible), Is Criminal History a Protected Class like Race or National Origin?,


and procedures to deal with screening applicants and employees for criminal history. These policies should be as narrow and individualized as possible in order to promote fair hiring practices. For instance, the E.E.O.C. sets out policy examples such as: determine specific offense that may demonstrate unsuitability for performing such jobs, determine the duration of exclusions for criminal conduct based on all evidence available, include individualized assessments, and record the justification for the policy and procedures. 84
Two significant points of reference for the employer are individualized assessment and application questions. The employer conducts an “individualized assessment” when it informs an employee or applicant that he or she is being screened out due to a criminal record, provides the individual with opportunity to respond, and the employer considers extenuating circumstances before making a final decision.85
The EEOC recommends that employers refrain from asking about convictions in employment applications as a recommended “best practice.” The guidance also advises that when employers do ask applicants about their criminal history, that they only ask applicants who are applying to positions where criminal history may be relevant and that the questions be limited to those convictions that correspond to job duties.86
Overall, the 2012 E.E.O.C. updated enforcement guidance focuses on encouraging employer action that narrowly looks that the circumstances of the crime rather than refusing the applicant based on the mere occurrence of the crime. The commission wants employers to develop policies that are as individualized as possible in order to keep the employer unscathed by liability, but also to humanize the hiring process. While these suggestions and

Id. See Barry A. Hartstein, Rod M. Fliegel, Marcy L. McGovern, & Jennifer L. Mora, Criminal
Background Checks: Evolution of the E.E.O.C.’s Updated Guidance and Implications for the
Employer Community, LITTLER EMP. & LAB. L. SOLUTIONS WORLDWIDE (2012), http:// 85

Id. See Leslie E. Silverman, What HR Professionals Need to Know About the E.E.O.C.’s New
Guidance on Criminal Background Checks, SOC. FOR HUM. RESOURCE MGMT. (2010), https:// %20eeoc%20guidance%20042712.pdf.

Id. See U.S. Merit Systems Protection Board, Reference Checking in Federal Hiring: Making the
Call, docnumber=224106&version=224325&application=ACROBAT, (last visited Dec. 10, 2014).


recommendations don’t seem threatening, the fact that the E.E.O.C. delineated how to proceed with disparate treatment and impact claims, as well as what types of evidence would be most effective, shows that they are willing to put the power in the hands of those who suffered from discrimination.87 This recent guidance has taken a harder stance against discriminatory hiring practices and highlights the barriers ex-offender minorities face.
The E.E.O.C. and others have engaged in several legal battles against employers in recent years. Not all of the cases ended favorably, but taking a public stance against employer practices serves the overall E.E.O.C. mission to end unlawful employment discrimination.
The U.S. Commission of Civil Rights published a report assessing, among several things, the impact of the criminal background checks and the E.E.O.C.’s conviction records policy. The
Commission’s report noted that the E.E.O.C has been far from successful in their initiated suits. For instance, the E.E.O.C. went after PeopleMark in 2008. PeopleMark was the
E.E.O.C.’s first high profile case where they alleged that the company maintained a policy that prohibited the hiring of any person with a criminal record.
The Commission argued that such a blanket no-hire policy had a disparate impact on African
Americans. Yet by a strange turn of events, the E.E.O.C.’s allegations turned out to be false.88
As litigation progressed, those who the E.E.O.C. had claimed were victims of
PeopleMark’s discriminatory hiring policy either did not have a criminal record or had actually been hired by PeopleMark.89 The Commission continued to pursue litigation against
PeopleMark before finally acknowledging it couldn’t prove that PeopleMark ever had a blanket no-hire policy in effect or confirm the identities of anyone who had suffered by this

Id. (evidence may be used to establish that race, national origin, or other protected characteristics motivated an employer's use of criminal records in a selection decision)

Christopher J. DeGroff & Gerald L. Maatman, Jr., E.E.O.C.’s “Shoot First, Aim Later” Tactics
Result in a $751, 942 Sanction,” WORKPLACE CLASS ACTION BLOG (Apr. 7, 2011), http:// 89

EEOC v. Peoplemark, Inc., No. 08-cv-907 (W.D. Mich., 2008)


discriminatory policy. The case was dismissed, yet PeopleMark asked for sanctions against the E.E.O.C. for pursuing a case that had no merit. 90 In March 2011, the Court awarded
PeopleMark $750,00 for partial attorney fees, expert witness fees, and other various litigation expenses. 91 The E.E.O.C. also launched a suit against Kaplan, but that case was ultimately thrown out.

92 The

E.E.O.C. and those who support their efforts to litigate on the premise of

employment discrimination based on background checks should not be disheartened by the low success rate in court. This is a use of criminal background checks in hiring decisions is absolutely an area that is ripe for litigation. Employers should be more careful in how their hiring decisions are made, because the courts will be seeing several more cases in line with disparate treatment stemming from blanket policies.
Even so, the E.E.O.C. has seen much high profile success by employing alternative methods to litigation. 93 The E.E.O.C. engaged in a negotiated conciliation agreement with
PepsiCo, and were able to obtain a settlement of over three million dollars. Also, PepsiCo agreed to provide job offers and training to resolve the race discrimination charge filed against them.94 The settlement money was divided among the rejected black PepsiCo applicants who had either arrests or criminal convictions. PepsiCo acquiesced and agreed to change its raceneutral policy that as the catalyst for this legal action created disparate impact results. 95




Steven Collis, Criminal Background Reports as Evidence in E.E.O.C. Class Actions, COLO. EMP.
L. LETTER (April 14, 2013), (Excerpted from Colorado Employment Law Letter, Steven
Collis is an attorney with Holland and Hart LLP).

Id. See Gerald L. Maatman, Christopher J. DeGroff, & Reema Kapur, E.E.O.C.-Initiated Litigation:
Case Law Developments in 2013 and Trends to Watch for in 2014, SEYFARTH & SHAW LLP (2013), 93

U.S. Commission on Civil Rights (2013),


Press Release, E.E.O.C., Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve
E.E.O.C. Finding of Nationwide Hiring Discrimination Against African Americans (January 11, 2012)
(on file with author).

U.S. Commission on Civil Rights (2013),


When the E.E.O.C. investigated PepsiCo’s hiring practices, it found more than 300
African Americans were adversely affected.96 PepsiCo’s policy disproportionately excluded blacks from permanent employment by baring employment of those who had been arrested, pending prosecution, even if the charge never resulted in a conviction. PepsiCo even denied employment opportunities to candidates that had been arrested or convicted of minor offenses.
Here, the E.E.O.C. found that under Title VII of the Civil Rights Act of 1964, PepsiCo’s practices were not deemed relevant to the job duties.97
The E.E.O.C. was able to obtain a race discrimination settlement from another employer – J.B. Hunt. In this situation, an African American job candidate was denied a truck driver position at J.B. Hunt based on a criminal conviction record. 98 The individual’s record had no bearing the job duties. J.B. Hunt had a blanket approach to hiring those with a prior criminal record. As part of a five-year conciliation agreement, J.B. Hunt “agreed to review, revise if necessary, and provide additional training concerning its hiring and selection policies and practices to comply with the E.E.O.C.'s guidance.”99 The EEOC intends to monitor J.B.
Hunt’s compliance with the conciliation agreement, and alleged victim entered into a private settlement agreement with J.B. Hunt.100
Green vs. Missouri Pacific Railroad is the leading Title VII case on criminal conviction records. The E.E.O.C. has long used the factors outlined in this decision as the


Press Release, E.E.O.C., Pepsi to Pay $3.13 Million (January 11, 2012) (on file with author).




Press Release, E.E.O.C., J.B. Hunt Agrees to Settle E.E.O.C. Discrimination Case Regarding
Criminal Conviction Records (June 28, 2013) (on file with author).



Id. See Michael Gaul, The Takeaway for Employers from JB Hunt’s E.E.O.C. Settlement,


authority in evaluating criminal records.101
In 1975, Appellant Buck Green had applied for a position as a clerk in the Missouri
Pacific Railroad’s corporate headquarters’ personnel office in St. Louis, Missouri. In response to a question on the job application, Green disclosed that he had been convicted for refusing military induction. 102 He stated that he had served 21 months in prison. After reviewing the application, Missouri Pacific Railroad’s personnel officer informed Green that he was not qualified for employment due to his conviction and prison record. 103 Missouri Pacific
Railroad’s hiring policy had been in place since 1948, seeking the disqualification of any applicant with a conviction for any crime other than a minor traffic offense.
Green was able to establish the prima facie case for discrimination by using statistical data offered into evidence. One of his more compelling testimonies included that of Dr.
Ronald Christensen. Dr. Christensen concluded that it is between 2.2 and 6.7 times as likely that a black person will have a criminal conviction record during his lifetime than that a white person will have such a record. He further concluded that in urban areas from 36.9 percent to 78.1 percent of all black persons would incur a conviction during their lifetimes, but that from only 11.6 percent to 16.8 percent of all white persons would acquire a conviction.104 However, the Court felt that the rule enforced by Missouri Pacific Railroad equally discriminated against blacks and whites on the basis of their criminal records. The Court went on to note that this case had judicially created a new Title VII protected class of persons with


Terrence G. Connor & Kevin J. White, The Consideration of Arrest and Conviction Records in
Employment Decisions: A Critique of the E.E.O.C. Guidance, 43 SETON HALL L. REV. (2013).

Green v. Missouri Pacific Railroad, 523 F.2d 1290 (1975).






conviction records. 105 The Court called on the legislation to effectuate its decision, but no action was ever taken, nor a bright line rule ever created.
The E.E.O.C. did take embrace the Green Factors to be used when evaluating criminal history, the employer should look at: 1) the nature and the gravity of the offense or conduct 2) the time elapsed since the conviction and/or completion of the sentence; and 3) the nature of the job held or sought. 106 The E.E.O.C. also welcomes the employer defense outlined in
Green: the employer must show that the hiring policy operates to effectively link specific criminal conduct with the risks inherent in the duties of a particular position, that it uses a narrow pre-employment screen that considers the Green factors, and allows an opportunity for individualized assessment for those excluded to determine whether or not the employment policy is job related and consistent with business necessity. 107 ii. EL V. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
The E.E.O.C. issued their updated enforcement guidance, in part, because of the decision of this case. The decision formed part of the rational behind the updated enforcement guidance. In this case, King Paratransit Services conditionally hired El as a driver to render curb-to-curb or door-to-door transportation services to those with mental or physical disabilities.108 King was a hired subcontractor for Southeastern Pennsylvania Transportation
Authority (SEPTA); King’s subcontract with SEPTA prohibited hiring anyone with a violent criminal conviction. 109 Soon enough, El started employment with King and had been working for a few weeks before, via the completion of a background check, King discovered El failed to disclose a prior criminal conviction. El had a 40-year-old conviction for second-degree murder. 105







El v. Southeastern Pennsylvania Transportation Authority (SEPTA), 479 F.3d 232 (3d Cir. 2007)




El’s charge arose out of a gang related fight in which the victim was shot and killed – he was not the one to pull the trigger. El was 15 years old at the time and went on to serve three and half years in prison for his crime; he never received another violent conviction in his life.110 As part of King’s contract with SEPTA, King was required to make sure that anyone in SEPTA service as a driver or attendant have no driving record under the influence of drugs or alcohol, no record of any conviction involving violence against another person, and no record of conviction within the last seven years. King immediately terminated El’s employment. Afterward, El filed a complain with the E.E.O.C., alleging that SEPTA’s hiring policy violated Title VII by discriminating on the basis of race. El argued that the hiring policy created a disparate impact because African Americans and Hispanics are more likely to have a criminal record, thus more likely to act adverse to the policy.111 Although the E.E.O.C. found for El, they were unable to resolve his claim. El then decided to pursue the claim in the district court. There, SEPTA sought and was awarded summary judgment based on a business necessity defense. The Court of Appeals affirmed summary judgment in favor of SEPTA, finding that SEPTA’s practices were consistent with business necessity: “we require that employers show that a discriminatory hiring policy accurately—but not perfectly—ascertains an applicant's ability to perform successfully the job in question.”112
Although El failed to obtain a favorable judgment, the Court notes that had he presented the appropriate rebuttable evidence – he left SEPTA’s experts on recidivism unanswered – he would have had a sufficient chance. 113 iii.E.E.O.C. V. BMW MANUFACTURING CO., LLC. (2013)
The E.E.O.C. filed suit against BMW within the last year. The case has yet to be







Steve Nakashima, 3rd Circuit Denial of Job to Person with Crime Conviction Upheld, SOC. FOR
HUM. RES. MGMT (Mar. 30, 2007), federalcourtreport/pages/cms_021008.aspx. 26

decided, but has received much attention. Here, the claimants were employees of Integrated
Logistics, Inc. (UTi). UTi is a subcontractor employed by BMW to provide logistic services to
BMW at the South Carolina facility. As part of tendered logistic services, UTi’s duties included warehouse and distribution assistance, transportation services, and manufacturing support.114 BMW had a longstanding criminal conviction policy that denied facility access to
BMW employees and employees of contractors with certain criminal convictions. When UTi scheduled claimants to work at the BMW facility, they screened the employees according to
UTi’s criminal conviction policy. UTi’s criminal conviction policy differed from BMW’s: UTi utilizes a background check limited to review of the prior seven years, while BMW’s policy has no time limit.115
In 2008, UTi’s contract with BMW ended. UTi employees were told that they needed to reapply with the new contractor in order to maintain their positions in the South Carolina warehouse. Because they were required to reapply, claimants were once again subjected to an employment screening process – new criminal background checks included. 116 The new contractor discovered that several UTi employees had criminal violations in conflict with BMW’s criminal conviction policy. BMW’s criminal conviction policy is “a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimant’s respective positions.”117 The employees who were now in violation of BMW’s criminal conviction policy were told they were no longer qualified or met the criteria required to work for BMW. They were terminated and denied rehire as employees of the new contractor – BMW disregarded the fact that many of these employees had been working at the BMW facility for several years. 118

Press Release, E.E.O.C., E.E.O.C. File Suit Against Two Employers for Use of Criminal
Background Checks (June 11, 2013) (on file with author).









The E.E.O.C. has requested injunctive relief to prevent future instances of discrimination, as well as seeing money damages in the form of back pay and prejudgment interest for all aggrieved employees. 119 iv. E.E.O.C. V. DOLGENCORP (2013)
The E.E.O.C. has filed a nationwide lawsuit against Dollar General Corporation, alleging discrimination by two rejected black applicants. The lawsuit argues that Dollar
General conditions all of its job offers on criminal background checks, resulting in a disparate impact against blacks.


One of the two rejected black applicants filed suit against Dollar General due to loss of an employment opportunity. This woman was given a conditional employment offer after she voluntarily disclosed a six-year-old conviction for possession of a controlled substance. Even though Dollar General was made aware of the conviction, tendered the job offer, and the claimant had previous job experience of similar kind,
Dollar General revoked the job offer.121 Dollar General cited that their practice was to use her type of conviction as disqualification factor for ten years. 122
As to the other rejected applicant, she alleges Dollar General fired her after a background check returned with erroneous convictions. She didn’t have a felony conviction, and even after notifying her store manager about the mistake, the company stood by their decision and upheld her termination.
The E.E.O.C. has pledged to assert claims of disparate impact in both suits against
Dollar General. They have exhausted alternative dispute resolution methods and now seek

Id. See Carianne P. Torrissi, Using Criminal Background Checks to Screen Applicants and
Terminate Employees? Beware – the E.E.O.C. May be Coming for You, KLEHR, HARRISON,
HARVEY, & BRANZBURG LLP L. BLOG (July 24, 2013), t=11&la=2372&format=xml. 120



Id. See Eric B. Johnson, E.E.O.C. Files Two New Lawsuits Over Criminal Background Checks,
Quarles & Brady LLP L. Blog (June 27, 2013),



judicial remedy. The E.E.O.C hopes to recover back pay for the wronged employees, as well as injunctive relief to prevent the further discrimination of employees and applicants. 123
i. STATE OF TEXAS V. E.E.O.C. (2013)
Unlike the previous cases, this one is an action taken against the E.E.O.C. After the release of the updated enforcement guidance on consideration of criminal background checks and hiring decisions, the State of Texas initiated action against the E.E.O.C. The enforcement guidance was released in April 2012.124 The guidance urged employers to avoid blanket rules against hiring individuals with criminal convictions. The E.E.O.C. offered scenarios where blanket rules against hiring ex-offenders could possibly violate Title VII if particular races or people of certain national origin feel a disparate impact. At the time of publicly releasing the enforcement guidance, Texas had already implemented laws that prohibited the hiring of felons in certain job categories. The enforcement guidance, which Texas nicknamed the
Felony Hiring Rule, is directly in conflict with how Texas wishes to conduct state wide hiring practices. In the action, Texas argued “that the EEOC did not have the authority to issue the
Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates its state sovereignty.” 125 This stance was immeidately rejected by the presiding judge. The Court found in favor of the E.E.O.C., ultimately dismissing the case. While the bulk of the decision was based on lack of subject matter jurisdiction,t he presiding judge dimissed the case because he believed it to be “seeking a premature adjudication in the abstract without any actual facts and circumstances relating to the employment practices at issue.” 126 The judge



Gerald L. Maatman, Jr. & Howard M. Wexler, Round One – Texas losses its suit against EEOC over its criminal background guidance, SEYFARTH SHAW LLP L. BLOG (August 21, 2014) http:// 125

Id. See Christopher DeGroff & Paul Kehoe, The Background Backlash Continues – Texas Sues the
E.E.O.C. over its Criminal Background Guidance, SEYFARTH SHAW LLP L. BLOG (November 6,



went on to hold that because the E.E.O.C. cannot bring enforcement action against states, there is a low chance that Texas will face future Title VII procceedings from the Department of Justice about the enforement guidance.127 Ultimately, the Court determined that Texas lacked the necessary standing to maintain its suit against the E.E.O.C., commenting that standing to bring suit “cannot be premised on mere speculation.” 128
This suit has been, by far, the most direct attack on the E.E.O.C.’s suggested criminal conviction record standards. Although the case was dismissed, spectators wait to see whether or not Texas will appeal the ruling.

In the last two years I’ve spent working at the Franklin County Public Defender’s
Office, a variety of individuals have crossed my path. On any given day in the Felony Unit, a broad spectrum of people could be sitting in the waiting room: child molesters fighting indictments, violent convicts seeking to terminate probation early, helpless men who can’t afford an attorney, even those who have been wrongfully convicted. In the midst of all of these vivid characters with even more colorful histories, one client particularly stands out. On certain days, my job duties involve shadowing a public defender - Attorney E. One morning in her service, I met one of her clients, Mr. J., and was able to sit in on his preliminary hearing.
There, Attorney E. would inform Mr. J. of his various options and conversations she expected to have with his prosecutor.
Mr. J. was charged with two counts of felony non-support; he had no prior felony record. His work history was sporadic, his education level was lower than the average person typically encountered, but when he spoke his words were impassioned and earnest. He hadn’t held a job since early 2012; Mr. J. had two explanations for this: his mother had been diagnosed with and passed away from cancer, and he could not find a job that allowed him to simultaneously work and take care of her while she received treatment.





When he first sat down at the table in the conference room, I watched him through untrusting eyes - when a man comes in for not paying his child support, it’s hard to shake the slight bias, no matter who you work for. He wore a tired sweatshirt, his jeans were a faded light blue, and the ends lay in taters around the heels of his shoes. His bright eyes were redrimmed (this could have been from drug use, but he conceded a troubled history with drugs that he had since left behind), and he clutched a Mountain Dew in his left hand. Mr. J. was desperate. You could see remnants of hopelessness as he leaned back in his chair, attempted to look nonchalant about the felony charge. Yet, his demeanor became readily apparent as he urgently questioned Attorney E. about how he could get the felony lowered to a misdemeanor.
Attorney E. spoke with him a few minutes before gathering that Mr. J. was only interested in having his felony lowered and would do anything to achieve that outcome. When
Attorney E. left to speak with the prosecutor, the prosecutor laughed in her face, and said something along the lines of, “maybe he shouldn’t be having children he can’t take care of in the first place.” Mr. J. had another child on the way with another woman – this made his circumstance incredibly unsympathetic in the prosecutor’s eyes. Attorney E. didn’t negotiate much. Her career with the Public Defender’s office had spanned many decades; this wasn’t her first case with an expecting father who was charged with non-support for his other children. Mr. J. didn’t supply Attorney E. with much to negotiate with. Mr. J. wasn’t able to come up with the substantial arrearages, he hadn’t made a single monthly payment in full in several years, and neglected to bring any documentation to corroborate that his mother had been sick.
When we returned to the conference room to speak with Mr. J. about his lack of options, Attorney E. specifically told him that his chances for getting a misdemeanor out of this charge was highly unlikely. His reaction was completely unpredicted: he put his hands flat on his knees released a loud, boisterous laugh. Attorney E. didn’t understand or know what to make of his response, but when he stopped laughing he said, “I can’t get a job now and now you’re going to give me a felony for not working, and then I won’t be able to work anyway. What’s the point?” He broke his laughter to look questioningly at his public defender.


The resounding, unspoken “why” unfurled and settled in the silence. This moment held a profound truth – the justice system is broken, the employment administration is broken.
His penalty for not paying his child support would only further insulate his poverty; the felony conviction would only further remove him from viable work opportunities, and then both the children and Mr. J. would suffer consequences of the criminal system. Mr. J. may have been trying to find work or he might not have been. Regardless, the moment he heard that his only option was to take the felony, he already decided that he didn’t stand a chance in the workforce. Once again I found myself on Attorney E.’s service, and Mr. J. had court date that day
– criminal proceedings often take a long time when the committed crime isn’t violent.
However, this time he was attempting to work with the prosecutors and police to hand over a well stocked drug dealer in order to get his non-support charge lessened. That too was a profound moment. Mr. J., unable to find work, was now willing to put his life in jeopardy to cut any sort of deal to avoid that felony conviction.
Ex-offenders make a mistake, get involved with a meaningless crime, or just fall into hard times, and the moment they reemerge, they are made to stand with their backs against corners – stripping them of basic opportunities that can ensure even a modicum of success.
How are ex-offenders supposed to reintegrate and return to lives with tools to rebuild? Maybe employers don’t hire ex-offenders because they have no faith in the rehabilitative efforts our criminal justice system. Maybe the theory of rehabilitation remains seen only in taxpayer dollars lining the high walls of prisons, not in a genuine effort to better the lives of the offender. Each question only leads to another, but all ultimately ends with: what can be done to help this problem?
A recent New York Times article highlights the plight of the ex-offender. James White was been convicted of a possessing a handgun without a license 10 years ago and is one over
60,000 people living in Washington with a criminal record. Unemployed, he went in to fill out an application to be a hospital janitor. The article focuses on his pause and thought process

before answering the application’s inquiry if he had ever been convicted of a crime. “Have you ever been convicted of a crime? — he shifted nervously in his seat. If he checked the
“yes” box, he would almost certainly not get the job as a hospital janitor. He checked the box.” 129 Apparently, a human resources employee had been checking on his application as he completed it. After checking the box, the employee told Mr. White not to bother with the rest of the form: “she said I should stop right there, that there was no need to continue filling out the application because I was done with the process.”130
Although employers are not permitted to explicitly discriminate, they have engaged in practices that hinder chances of an ex-offender finding gainful employment. The hiring practice in question takes form in the pre-employment screening process – the application itself. When filling out a job application, many fortunate candidates do not think twice in answering “No” when asked whether they have been charged or convicted with a various crime. For ex-offenders, this box has resulted in failed attempts to find consistent work.
Typically, employers use this question to narrow the job seeking pool. The individuals who affirmatively answered the inquiry – that they do have a criminal record – regularly are overlooked and their applications are set-aside for someone with a more favorable, or lack thereof, criminal history.
The harm in this methodology is that employers never place themselves in a position to consider the applicant’s other qualities. For instance, some jobs require a clean driving history, one that hasn’t been tainted with charges like driving under the influence. A college educated, well-experienced applicant may tender their resume for consideration, but because of the stain on their driving record, they are disqualified. The employer never meets face to face with the individual and if they had, they might have discovered that the infraction was 10 years old, or had occurred at the cusp of adulthood. The ex-offender suffers greatly without a chance to explain or present themselves beyond resumes


Timothy Williams & Tanzina Vega, A Plan to Cut Costs and Crime: End Hurdle to Job after
Prison, N.Y. TIMES (Oct. 23, 2014),



and applications. A face-to-face interview is the only opportunity a candidate has to show human qualities that transcend the paper application.
In search of a remedy, the Ban the Box campaign was developed. Ban the Box is an initiative that focuses on giving ex-offenders the chance to have their applications evaluated in the same light as every other person; by forgoing immediate disclosure of their criminal history, ex-offenders can be evaluated without the same prejudice they would normally face.131 Advocates for the Ban the Box initiative believe that application of the policy would give those convicted of a crime a chance to seek job opportunities without employer prejudice, reenter society, and most importantly – stay out of prison.

The culmination of the rise of offenders, the increase in ex-offenders returning home, and the poor job outlook, has prompted states to respond. Currently, thirteen states have embraced a statewide ban the box fair hiring laws. 132 Those 13 combine with 17 other states to bring the total to 30 states that either have a statewide initiative dedicated to fair hiring polices, or local or city polices that ensure fair hiring practices. 133 Nationwide, almost 70 cities and counties are taking steps to remove potentially unfair employment barriers in their hiring policies. 134 What is even more incredible – six states, Washington D.C. and 20 other cities allow fair chance hiring policies for government contractors and private employers. 135

Ban the Box: A Fair Chance at a Stronger Economy,,
(last visited Dec. 10, 2014).

Id. See Ban the Box Resource Guide,, (last visited Dec. 10, 2014) (the thirteen states include
California, Colorado, New Jersey, Connecticut, and Massachusetts)

Id. See National Employment Law Project, Seizing the “Ban the Box” Momentum to Advance a
New Generation of Fair Chance Hiring Reforms (2014),



Id. See The Fortune News, Workforce Development (2014), files_mf/1417629769FortuneNewsNovember14ForWeb.pdf, (last visited Dec. 10, 2014).


Historically, Hawaii became the first state in 1998 to remove conviction questions from its applications. Only until the late 2000s did the political atmosphere shift and take a clear look at how the ex-offender bubble was about to burst; within the last two years, eight states have passed legislation to aid the ex-offender in getting back to work. In March 2014,
San Francisco became the first city in the country to adopt a Ban the Box policy that included private employers and affordable housing. The Fair Chance Ordinance bars “private companies with more than 20 employees, contractors that hold city contracts worth more than
$5,000 and any residential building that has received city funding from asking about a potential applicant’s criminal history prior to conducting a job interview or reviewing a housing application.”136 This ordinance was signed into effect after California passed
Assembly Bill 218. 218, having gone into effect this past July, requires more than 6,000 local, regional public agencies to remove the check – box question on job applications that questions if you’ve ever been convicted of a felony.137
The National Employment Law Project notes how the current prison atmosphere is in dire need of legislative redress,
In an era of extreme mass incarceration, fair chance campaigns provide a platform to educate the public about the social stigma of a criminal record and the real consequences of depriving millions of Americans with past convictions of economic stability. 138
They go on to cite California clergy leaders who have been vocal about the value of fair employment transcending ex-offenders onto everyone: “it’s not just about fairness for people


Joe Watson, Ban the Box Movement Spreads Nationwide, Prison Legal News, PRISON L. NEWS
(Oct. 2014),



Id. See National Employment Law Project, Seizing the “Ban the Box” Momentum (2014), http:// 35

with records – it’s also good for the economy and for the safety of our communities to ensure we’re maximizing job opportunities for everyone.” 139
Several other states are becoming more partial to enacting a measure that would spread the reaches of the ban the box campaign. In Georgia, Governor Nathan Deal “has indicated [to the National Employment Law Project] that the state will set an example for private sector employment by not automatically dismissing job applicants with a criminal history.”140 Governor Deal has also said that he will be issuing an executive order to take the question off the application. Additionally, Nebraska recently passed ban the box legislation in the public employment realm. Continued efforts to receive approval for ban the box legislation is underway in cities like Indianapolis and Louisville, Kentucky. Texas and Ohio are two very large players who, although haven’t expressed disinterest, have conceded that they “don’t want people to come out of prison and never be able to work.”141
Prestigious social advocacy organizations have also endorsed the ban the box initiative. The National Association for the Advancement of Colored People (NAACP) agrees with the ban the box initiative in their findings for successful reentry. After investigation of this growing problem, the NAACP succinctly summarizes the problem ex-offenders face today, Although they have paid their debt and served their time, individuals with a criminal history are too often denied the opportunity at redemption and turned away from legitimate employment, which would help engage them in productive activities that improve quality of life for everyone and enable them to become productive members of society. 142


140 (Bloomberg BNA Human
Resources Report)

Id. See Lorelei Laird, Ex-Offenders Face Tens of Thousands of Legal Restrictions, Bias and Limits on Their Rights, ABA J. L. BLOG (June 1, 2013, 10:00 AM), article/ex-offenders_face_tens_of_thousands_of_legal_restrictions. 142

NAACP, The Successful Reentry Project: Working Towards Justice, Dignity and Redemption,
NAACP (2009),


In the same breath, the NCAAP offers support for a solution. They believe the Ban the
Box campaign is the rightful answer to the problem American ex-offenders are currently facing. According to their solution, the NCAAP believes criminal history should only be disclosed in a face-to-face interview and only in circumstances where criminal history has bearing on the job in question.143 The document is persuasive in its intentions; the NCAAP’s stance on ban the box is that it should be implemented on a grass roots level. They call for advocates to reach out to employers, to community leaders, to anyone who might have the influence to call for a policy change – this report makes it very clear that we have the power to change this epidemic.


Several big name employers have publicly come forward in support of banning the box. In 2013, Minnesota banned the box for private employers. Target – a $73 billion
Minneapolis based company - had been involved with the development of the bill since its inception at the state capital. Not only did Target also ban the box from their applications, they’ve donated at least $100,000 to the Council on Crime and Justice – a Minneapolis social justice organization that supports ex-offender programs including employer education on the issue.144 The Council’s vice president, Mark Haase commented, “Target is helping to level the
[employment] playing field a little more. Now people may be able to get a job and support their families.”145
Those who support the initiative stresses the importance in giving prospective employees a chance to be interviewed or has a conditional job offer before delving into whether they have a criminal record. Minnesota especially supports the measure: “the idea is that ex-offenders




Janet Moore, Target to Ban Criminal History Box on Job Applications, STAR TRIB. BUS. (Oct.
26, 2013), .



will have a better chance at getting a job if they’re not eliminated at the very beginning of their job search.” 146
Another massive employer has banned the box from their job applications – WalMart.
In 2010, WalMart removed the conviction or arrested question from their applications, but emphasized that this measure would not negate the mandatory drug tests and other preemployment screening.
Just this past summer, Bed Bath & Beyond agreed to take steps to comply with New
Jersey’s laws that bar automatic disqualification of candidates with criminal convictions. 147
Before making the effort to remove the question of conviction or arrest from their job application, Bed Bath & Beyond was under investigation by the state of New Jersey. A Bed
Bath & Beyond Human Resources manager had told participants at a job fair that his company doesn’t hire individuals with felony convictions, regardless of any evidence of rehabilitation.148 This invoked a charge of extreme discrimination, which the Attorney
General’s office subsequently investigated. In light of the investigation, Bed Bath & Beyond released a statement of compliance:
Although the Settlement does not include any admission that we violated any of these laws, we are in agreement with the Attorney General that employment opportunities should remain open to individuals with criminal histories that have been rehabilitated. In advancement of that goal, we fully cooperated with the Attorney General's investigation and as part of our agreement will continue to share information with the Attorney General that


Id. See Yvonne Wenger, Ban the Box Advances over Opposition from Businesses, BALT. SUN
(April 7, 2014),

Rhonda Smith, Employer Concerns About Liability Loom as Push Ban the Box Policies Spreads,
BLOOMBERG BNA (August 18, 2014), (Bloomberg BNA Human Resources Report).

Id. See Shoshannah Sayers, Formerly Incarcerated Leaders have Historic Meeting with Federal
Interagency Reentry Council, S. COAL. FOR SOC. JUST. (Oct. 22, 2014), https:// 38

demonstrates our continued compliance with these laws.149
As for an out of court settlement, Bed Bath and Beyond was ordered to pay $125,000, including $40,000 in restitution to applicants who were unlawfully denied employment.150
This statement is what several employers are leaning toward adopting. The Ban the Box push is gaining more attention and popularity in the recent years. Now that state legislation and actors have taken an interest in, several private employers will be in the same situation as
Bed Bath & Beyond. With a firm stance from state governments, soon the Ban the Box campaign will take hold on more businesses throughout the country.
Ex-offenders have suffered at the hands of employers from even before the inception of Title VII’s goal to protect individuals from discrimination. The E.E.O.C. attempted to rectify the lack of legislative intervention after the Court’s ruling in Green v.
Missouri Pacific Railroad, and only now is society willing to look at this plight from the exoffender’s point of view. Several factors have contributed to this shift or perspective: the claustrophobic rise of incarceration rates, outright blanket policies that don’t even allow an ex-offender to transcend a paper application, and especially the disheartening growth of those who reoffend and return to prison.
The employer’s tendency to choose an individual without a criminal record before even considering a person with a criminal past needs to be rectified. This frame of thought has


Id. See Christie Smythe, Bed Bath and Beyond Ends Ban on Workers with Criminal Past,
BLOOMBERG (Apr. 22, 2014),

Id. See Rita Zeidner, N.Y.: Bed Bath and Beyond Avoids Lawsuit by Agreeing to Hire Ex-Offenders,
SOC. FOR HUM. RES. MGMT. (May 20, 2014), stateandlocalresources/pages/ny-bbb-agrees-to-hire-ex-offenders.aspx. (The company also agreed to change its hiring policies in compliance with New York civil rights laws. New York employers must conduct an individualized evaluation of applicants’ criminal records by considering such factors as: the nature and gravity of an applicant's criminal conviction; whether the offense is related to any specific responsibilities of the job sought; the time that elapsed since the conviction; the age of the applicant at the time when the offense was committed; evidence of rehabilitation).


left hundreds of thousands people out of work, without means to provide, let alone succeed, beyond their status quo or the barriers that originally placed them in hands of the police. The proposed remedy, Ban the Box, attacks the problem at the source: by delaying an employer’s potential of bias, the ex-offender is able to make a case for who they really are – not what they’ve done.
Initially, Ban the Box seemed like such a small, ineffective step toward resolution.
How much of a difference could erasing an inquiry really make? For a remedy such as Ban the Box to take effect, society needs to understand that you can’t just descend onto people’s lives and environments and preach about change. Many ex-offenders hail from low income, impoverished, ill educated, and drug infested communities. These environments can’t be changed overnight, but with Ban the Box a way out is finally conceivable.
The sociological and psychological effects of the success of a program like Ban the
Box have yet to be accounted for as it is still very new. But imagine how the ability to find gainful employment, being able to provide and giving back, as well as the ability to finally set sights on a different life, can help an ex-offender solidly plant his feet on the ground and become adverse to criminal activity. The confidence a simple job can install can help strengthen the character of these post release offenders, allowing them to grow certain of themselves and their place in society.
Ex-offenders like Mr. J. would capitalize on the opportunity the Ban the Box
Campaign offers. He would fly through every individualized assessment and become a valuable employee. However, if more states do not implement the Ban the Box Campaign, our ex-offenders will remain an untapped work force, they will be recycled back into the environments that sent them to jail, or they relapse and reoffend – destined to a life as a career criminal. 40

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