Community Impact Guide How Employers Can Safely Limit Use of Criminal Records in Hiring

August 2013

The Problem: Over-Use of Criminal Records in HiringEach year, millions of individuals are released from prisons and jails and return to their communities with high hopes of turning their lives around. One of the first and most important steps to reentering the community is getting a stable job. Unfortunately, many citizens returning to the community find out quickly how hard it is to get hired when the job application asks about a criminal record. Without a stable job, it is nearly impossible to find steady housing or to be able to support a family. Barriers to jobs negatively affect the entire community, not just the individual. According to a 2012 poll of the Society of Human Resources Management, 92 percent of employers now use criminal background checks when hiring workers. Since African Americans are

disproportionally involved in the criminal justice system, this has an especially devastating impact on communities of color. While background checks are not bad in themselves, employers often use background checks to screen out all people with records, even if the crime they committed was a long time ago and has nothing to do with the job. For example, a person convicted of a drug offense when they were young

should not be automatically excluded from getting a job supervising clerical staff many years later. By excluding all people with criminal convictions from getting a job, employers are not helping to make communities any stronger or safer.

The EEOC Guidance Employers are using criminal screens at unprecedented levels. This tends to place an unfair burden on African American and Hispanic communities, which are disproportionately caught up in the criminal justice system. Therefore, an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination enacted by Congress in Title VII of the Civil Rights Act of 1964.

In 2012, the agency that enforces federal employment anti-discrimination laws, the Equal Employment Opportunity Commission (“EEOC”), released recommendations for employers to follow when using criminal background checks. Many employers are unaware that these updated recommendations exist. With the help of other members of your community, taking this information to employers can not only help them avoid liability under the law, but can also open doors for individuals who may have experienced unfair exclusion from jobs.

Considering that African Americans and Latinos are more likely to be arrested than whites, more likely to be charged once arrested, and more likely to be convicted and incarcerated when charged, it is important for employers to be aware of this updated guidance, both to assure fairness for minority job seekers and for employers to avoid Title VII liability. These straightforward recommendations encourage practical hiring policies-policies you can feel comfortable encouraging an employer to use:

Individualized Assessment that considers at least the nature of the crime, time since the criminal conduct occurred, and the nature of the job in question

Arrest Records Without Conviction should not be used to deny employment, in the absence of evidence of underlying conduct indicating unsuitability for the particular job.

No Lifetime Bans and No Blanket Screens. Criminal history is irrelevant if the person has lived for years without another conviction or if the crime is not truly related to the job.

Returning to the community from jail or prison is a complex and difficult transition, and unemployment is one of the greatest barriers to successful re-entry.

Best Practices for Using Criminal Records in Hiring The Lawyers’ Committee has collaborated with other civil rights organizations to issue a special report that provides practical steps that employers can follow to comply with the Guidance. The idea behind the Best Practices is simple: Both employers and their employees will benefit when employers look at the actual experience and qualifications of job applicants and make hiring decisions based on experience and qualifications. Everyone loses when employers let stereotypes about risks prevent them from hiring qualified applicants just because they were previously convicted of a crime. Employers need to think sensibly about risk, but if the misconduct involved in a prior crime has little to do with the job and the crime was years ago, the applicant’s work experience and qualifications usually tells the employer much more about the applicant than the prior conviction does. The full report can be found at bestpracticestandards.lawyerscommittee.org

Keys to Best Practices There are lots of details in the Best Practices report, but the key ideas for employers to follow are simple: (1) Do not ask about criminal history on the application; wait until you have decided which candidates to interview. (2) Rely only on conviction records; do not penalize someone for an arrest. (3) Do not use a blanket screen for all convictions, but consider what convictions for criminal conduct are reasonably related to the situation of the job the employer is filling; also, limit the length of time that a conviction will be considered, since the longer the applicant has been living peaceably in the community, the less likely the past crime indicates any risk today. (4) Do not use a background screening company that reports only from online databases; get reports from original records. (5) The applicant should have a chance to challenge the report and to provide evidence of rehabilitation.

The Three “R’s”

One way to think about the EEOC Guidance and the Best Practices is to keep in mind the “three R’s.” You should encourage the employer to consider the three “R’s” before rejecting a job applicant based on the criminal history of an applicant/employee by asking these questions.

Do the risks associated with job in question require a criminal background check? If so, what specific convictions are relevant to the job in question? Is it rational to take adverse action based on conviction that occurred a long time ago, before the applicant demonstrated substantial rehabilitation? You are not asking employers to stop using criminal background checks

altogether. Criminal background checks are an important and necessary aspect of hiring policies for certain positions, such as work with vulnerable groups (elderly, children, etc.).

Instead, you are asking employers to consider the risks that arise from the nature of the job before screening applicants. This is called a “relevance screen,” and is one of the central recommendations of the EEOC Guidance.

Getting Involved: What You Can Do If unfair hiring policies are affecting your community, take action! Policy-makers are beginning to understand how unfair and counter-productive it is that punishment for past mistakes continues well after a person returns to the community.

There are things that you can do right now to help end unfair hiring practices. First, start with your own network of friends, family and coworkers, or with a church or other local community organization.

1. Ask questions! If you are employed, ask your employer what their hiring policies are regarding criminal background checks. You may be surprised by the answer. If you believe that policy unfairly screens out people with criminal records, contact us at lawyerscommittee.org/contact/

2. Tell us your story. If you believe an employer has discriminated against you due to your race and/or

the information in your criminal history, call us at (888) 324-7578 or visit the Lawyers' Committee Web

site and complete an intake questionnaire by going to http://www.lawyerscommittee.org/contact/intake

3. Talk to friends and family! Even if this is an issue that does not touch you personally, you are likely to know someone who has been affected. Ask them to share their experience looking for a job, and how it has impacted other parts of their life.

4. LEARN! The best way to keep the conversation going is by educating yourself on the problems that exist in your community, and what if anything is being done to fix them. Share your knowledge with others.

5. Get organized! Organize people who have been affected by unfair hiring policies and/or are interested in learning more. Host a house meeting to share experiences, resources and knowledge; build a support system.

It’s important for employers to re- member that millions of workers with prior convictions have turned their lives around and become productive members of society.

Approaching an Employer

Approaching an employer can be intimidating. However, it is important to keep in mind that many employers are unaware of this 2012 Guidance. By relaying this information, you are not only helping members of your community get a fair shot at a job, but are minimizing the employers’ liability risks. Once you have identified employers in your community whose hiring practices could be improved, see if a hiring manager or human resources staffer would be willing to meet with you individually or along with other members of the community.

By letting employers know that this is an important issue and by alerting them about their responsi-bilities given the recent EEOC Guidance, you are putting the necessary pressure on employers to change the way they unfairly use criminal background checks to screen out qualified individuals.

"Reentry provides a major opportunity to reduce recidivism, save taxpayer dollars, and make our communities safer.”

—Attorney General Eric Holder,

The Federal Interagency Reentry Council

Presenting Fair Hiring Practices to the Employer

A basic agenda for meeting with an employer might look like this:

1. Identify yourself as a member of the community (do you represent an organization?) and explain why you are concerned. Share the statistics listed on the Facts (next page).

2. Ask the employer representatives what their current hiring policies are, and if they are familiar with the updated EEOC Guidance.

3. Whether or not they know the Guidance, ask what the employer’s policies are about each of these areas, which are addressed in recommendations in the Guidance:

Do they ask about criminal history on the job application? Do they consider whether the risks associated with a job require a criminal background check? Do they reject applicants based on arrests that did not result in a conviction? Do they consider what specific convictions are relevant to the job in question? Do they consider whether the applicant has demonstrated substantial rehabilitation before

rejecting an applicant based on a conviction that occurred years before? Do they insist on a background report based on original records, not just online databases? Do they give applicants a chance to dispute a reported record and to show rehabilitation?

4. Explain how their current policies hurt members of your community, and how common-sense changes could really have a big impact. Probe employers about any blanket exclusions for people with criminal convictions exist, and what purpose those exclusions serve.

5. Explain that both the employer and many deserving members of the community would benefit from the employer’s giving individualized consideration to rehabilitation, including employment in the same job since conviction without problems arising, other successful employment, stable family ties, and getting and staying clean and sober.

6. Ask the employer if it would be willing to reevaluate its practices, especially in light of the EEOC Guidance. If other employers in your community have more reasonable policies, use those policies as examples.

7. Leave a Best Practices Report with the person you meet with, and your contact information in case they have any further questions. Thank them for their time, and follow up to see if they have given your recommendations any more consideration.

Recently more evidence concerning the appalling racial disparities present in our criminal justice system have become available, and some were highlighted in the EEOC guidance:

Incarceration rates have increased 7x since 1974; the U.S.

is now the world’s leading jailer.

African Americans make up about 13% of the U.S.

population, but 39% of prison and jail inmates.

African Americans and Hispanics are arrested at a rate

that is 2 -3x their proportion of the general population.

1 in 17 white men are expected to serve time in prison

during their lifetime; in contrast, that number is 1 in 6 for

Hispanic men; and 1 in 3 for African American men.

Blacks are 4x more likely to be arrested based on drug

charges, though the frequency of drug use is about the

same for all ethnic groups.

2/3 of those released from incarceration each year have

served time for non-violent property or drug offenses.

Contact Information:

1401 New York Avenue NW, Suite 400

Washington, DC 20005

Phone: (202) 662-8600

Toll Free: (888) 299-5227

Access Campaign: (888) 324-7578

©Copyright 2013 Lawyers Committee for Civil Rights Under Law

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The Access Campaign of the Lawyers’ Committee for Civil Rights is dedicated to remov-ing barriers to employment, particularly for people with criminal convictions. This Com-munity Impact Guide is second in a series of reports adapted from Guidance issued by the Equal Employment Opportunity Commission. The first is Best Practice Standards, written by the Lawyers’ Committee and other civil rights organizations in consultation with highly respected background checking companies. That outline, for employers and background screening companies, describes fair hiring practices that employers should follow. The full report can be found online at:

bestpracticestandards.lawyerscommittee.org.