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Comment to U.S. Commission on Civil Rights on Criminal Background Checks

January 18, 2013
While employers have a justifiable interest in seeking a law-abiding workforce, prospective workers should not be disqualified by past conduct that has little or no bearing on their suitability for employment.

January 18, 2013

Ms. Lenore Ostrowsky
Acting Chief, Public Affairs Unit
U.S. Commission on Civil Rights
1331 Pennsylvania Ave., NW, Suite 1150
Washington, DC 20425

RE:      Comment in Support of EEOC’s Enforcement Guidance on Criminal Background Checks

Dear Ms. Ostrowsky:

We appreciate this opportunity to submit comments on the impact of criminal background checks on employment for black and Latino workers.  I write today in support of the Equal Employment Opportunity Commission’s (EEOC) April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.  While employers have a justifiable interest in seeking a law-abiding workforce, prospective workers should not be disqualified by past conduct that has little or no bearing on their suitability for employment.

I write on behalf of The Sentencing Project, a national nonprofit organization that works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration. The Sentencing Project has long been engaged in research and advocacy regarding the collateral consequences of mass imprisonment.  In these areas, we have published broadly, engaged with policymakers nationally, and frequently presented testimony before Congress and state legislative bodies.

More Working Age Americans Have Criminal Records

The skyrocketing growth of our nation’s criminal justice system has been well documented.  The United States is the world’s leader in incarceration with 2.2 million people currently in the nation’s prisons and jails.  As of 2010, nearly 20 million Americans — 8.6% of the adult population — had been convicted of a felony.1)Shannon S., Uggen C., Thompson M., Schnittker J., and Massoglia M. 2011. “Growth in the U.S. Ex-Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.  Nearly one in three Americans has been arrested at least once by age 23.  Many of those who have been arrested — and thus have a “criminal record” that could appear on a criminal background check — have never been convicted of a crime.

African Americans, in particular, have been impacted by the growth of the criminal justice system, in part due to unwarranted disparities at each stage of the system.  Though they make up less than 13% of the U.S. population, African Americans account for about 40% of those behind bars.  By age 35, a fifth of all black men will have been incarcerated at some point in their lives. Among black male high school dropouts, two-thirds will have been imprisoned.  African Americans account for 28% of all arrests, which in part reflects involvement in criminal activity, but also has been demonstrated to be a function of law enforcement targeting resources in communities of color, particularly for drug law enforcement.

Given that 92% of employers conduct criminal background checks, it is clear that millions of Americans are affected by criminal backgrounds checks when applying for a job.

Therefore, EEOC’s 2012 Enforcement Guidance is timely and necessary.  The updated guidance calls for employers to assess applicants on an individual basis rather than excluding with a blanket policy all of those with a criminal record.  It directs employers to weigh the nature of the job, the seriousness of the offense, and the length of time since the offense occurred in hiring. Moreover the revised guidance notes that job seekers should not be rejected on the basis of an arrest alone, since arrest is not proof of criminal behavior.

Impact of Criminal Record on Employment Prospects

An estimated 700,000 individuals will be released from prisons this year, with an additional 12 million being released from local jails.  Most of these individuals will seek to enter the workforce.  Unfortunately, many employers hesitate to hire individuals who have been arrested or convicted of a crime — ruling out a broad swath of the nation’s adults, even though they may be well qualified for a job.  A study by Harry Holzer of Georgetown University finds that a majority of employers said they would likely not be willing to hire an applicant with a criminal record.  A report by the National Employment Law Project suggests that a number of corporate human resources offices may refuse to hire individuals with a criminal background as a matter of company policy.

Such barriers are problematic for three reasons. First, excluding individuals from employment consideration due to an arrest which did not lead to a conviction is both unfair and reinforces the effects of racial disparities in law enforcement. Second, while there are situations where the nature of a prior conviction may be a relevant consideration for employment, in many cases there is little or no relationship to the position, and no justification for a blanket ban on hiring.

Finally, in recent years, an evolving consensus has recognized the potential for growth among those with prior criminal histories, creating an opportunity for employers to provide a second chance to individuals with criminal records.  For example, Alfred Blumstein of Carnegie Mellon University and colleagues have found that individuals with a criminal history who remain arrest- free for between 4-7 years have no greater chance of rearrest than the general population of their age group.

Employers have also expressed concerns about liability issues in hiring persons with a criminal record.  To address such concerns, several states including Colorado, Florida, Ohio, New York, and North Carolina, have limited negligent hiring liability for employers in these situations.

Effects of Collateral Consequences

In addition to the challenge of obtaining employment, individuals with a criminal background face another set of barriers – often called “collateral consequences” – that can impact people long after they have completed their criminal sentences.

Collateral consequences are the additional penalties tied to a conviction that greatly affect an individual’s ability to engage politically, economically and socially upon their reentry to society. These consequences, which are imposed by thousands of state statutes according to the American Bar Association, include barriers to housing, education, voting, and eligibility for public benefits. Collateral consequences are distinct from direct consequences of convictions in that they are not factored into the calculation of punishment or sentencing, and are triggered outside the jurisdiction of the courts.  In short, these penalties deny many individuals with a prior conviction the right to participate in American life.

Conclusion

Many of the millions of individuals with criminal records make a reasonable effort to be productive members of society.  Effective public policy should encourage persons with criminal records to turn their lives around and engage in rehabilitative efforts that result in personal growth that will strengthen public safety. Barriers to employment can hinder those efforts.

Though employers have an interest in hiring workers who will not commit crimes and in ensuring the safety of their customers and employees, people should have an opportunity to be employed in jobs for which they are qualified and for which their criminal record is not a predictor of future criminal activity.

Sincerely,

Marc Mauer
Executive Director

 

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