A New York City grand jury declined to indict a white police officer in the case of Eric Garner, a 43-year-old unarmed black man who died July 17 in a police choke-hold.
The grand jury found “no reasonable cause” to indict officer Daniel Pantaleo, who was attempting to arrest Garner for allegedly selling untaxed cigarettes.
Amid crowds gathering tonight to protest in Manhattan and growing discord on social media about the decision, U.S. Attorney General Eric Holder announced that the Justice Department is opening a federal civil rights inquiry.
Holder, while urging calm in the aftermath of yet another controversial grand jury action, promised that the federal inquiry would be “independent, thorough and fair.”
President Obama said the grand jury decision will spark strong reaction from the public, especially in the wake of a similar decision in Missouri last week not to indict officer Darren Wilson in the shooting death of unarmed Michael Brown.
The biggest crime in the U.S. criminal justice system is that it is a race-based institution where African-Americans are directly targeted and punished in a much more aggressive way than white people.
Saying the US criminal system is racist may be politically controversial in some circles. But the facts are overwhelming. No real debate about that. Below I set out numerous examples of these facts.
The question is – are these facts the mistakes of an otherwise good system, or are they evidence that the racist criminal justice system is working exactly as intended? Is the US criminal justice system operated to marginalize and control millions of African Americans?
Information on race is available for each step of the criminal justice system – from the use of drugs, police stops, arrests, getting out on bail, legal representation, jury selection, trial, sentencing, prison, parole and freedom. Look what these facts show.
One. The US has seen a surge in arrests and putting people in jail over the last four decades. Most of the reason is the war on drugs. Yet whites and blacks engage in drug offenses, possession and sales, at roughly comparable rates – according to a report on race and drug enforcement published by Human Rights Watch in May 2008. While African Americans comprise 13% of the US population and 14% of monthly drug users they are 37% of the people arrested for drug offenses – according to 2009 Congressional testimony by Marc Mauer of The Sentencing Project.
Two. The police stop blacks and Latinos at rates that are much higher than whites. In New York City, where people of color make up about half of the population, 80% of the NYPD stops were of blacks and Latinos. When whites were stopped, only 8% were frisked. When blacks and Latinos are stopped 85% were frisked according to information provided by the NYPD. The same is true most other places as well. In a California study, the ACLU found blacks are three times more likely to be stopped than whites.
Three. Since 1970, drug arrests have skyrocketed rising from 320,000 to close to 1.6 million according to the Bureau of Justice Statistics of the U.S. Department of Justice.
African Americans are arrested for drug offenses at rates 2 to 11 times higher than the rate for whites – according to a May 2009 report on disparity in drug arrests by Human Rights Watch.
Four. Once arrested, blacks are more likely to remain in prison awaiting trial than whites. For example, the New York state division of criminal justice did a 1995 review of disparities in processing felony arrests and found that in some parts of New York blacks are 33% more likely to be detained awaiting felony trials than whites facing felony trials.
Five. Once arrested, 80% of the people in the criminal justice system get a public defender for their lawyer. Race plays a big role here as well. Stop in any urban courtroom and look a the color of the people who are waiting for public defenders. Despite often heroic efforts by public defenders the system gives them much more work and much less money than the prosecution. The American Bar Association, not a radical bunch, reviewed the US public defender system in 2004 and concluded “All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring…The fundamental right to a lawyer that America assumes applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the US.”
Six. African Americans are frequently illegally excluded from criminal jury service according to a June 2010 study released by the Equal Justice Initiative. For example in Houston County, Alabama, 8 out of 10 African Americans qualified for jury service have been struck by prosecutors from serving on death penalty cases.
Seven. Trials are rare. Only 3 to 5 percent of criminal cases go to trial – the rest are plea bargained. Most African Americans defendants never get a trial. Most plea bargains consist of promise of a longer sentence if a person exercises their constitutional right to trial. As a result, people caught up in the system, as the American Bar Association points out, plead guilty even when innocent. Why? As one young man told me recently, “Who wouldn’t rather do three years for a crime they didn’t commit than risk twenty-five years for a crime they didn’t do?”
Eight. The U.S. Sentencing Commission reported in March 2010 that in the federal system black offenders receive sentences that are 10% longer than white offenders for the same crimes. Marc Mauer of the Sentencing Project reports African Americans are 21% more likely to receive mandatory minimum sentences than white defendants and 20% more like to be sentenced to prison than white drug defendants.
Nine. The longer the sentence, the more likely it is that non-white people will be the ones getting it. A July 2009 report by the Sentencing Project found that two-thirds of the people in the US with life sentences are non-white. In New York, it is 83%.
Ten. As a result, African Americans, who are 13% of the population and 14% of drug users, are not only 37% of the people arrested for drugs but 56% of the people in state prisons for drug offenses. Marc Mauer May 2009 Congressional Testimony for The Sentencing Project.
Eleven. The US Bureau of Justice Statistics concludes that the chance of a black male born in 2001 of going to jail is 32% or 1 in three. Latino males have a 17% chance and white males have a 6% chance. Thus black boys are five times and Latino boys nearly three times as likely as white boys to go to jail.
Twelve. So, while African American juvenile youth is but 16% of the population, they are 28% of juvenile arrests, 37% of the youth in juvenile jails and 58% of the youth sent to adult prisons. 2009 Criminal Justice Primer, The Sentencing Project.
Thirteen. Remember that the US leads the world in putting our own people into jail and prison. The New York Times reported in 2008 that the US has five percent of the world’s population but a quarter of the world’s prisoners, over 2.3 million people behind bars, dwarfing other nations. The US rate of incarceration is five to eight times higher than other highly developed countries and black males are the largest percentage of inmates according to ABC News.
Fourteen. Even when released from prison, race continues to dominate. A study by Professor Devah Pager of the University of Wisconsin found that 17% of white job applicants with criminal records received call backs from employers while only 5% of black job applicants with criminal records received call backs. Race is so prominent in that study that whites with criminal records actually received better treatment than blacks without criminal records!
So, what conclusions do these facts lead to? The criminal justice system, from start to finish, is seriously racist.
Professor Michelle Alexander concludes that it is no coincidence that the criminal justice system ramped up its processing of African Americans just as the Jim Crow laws enforced since the age of slavery ended. Her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness sees these facts as evidence of the new way the US has decided to control African Americans – a racialized system of social control. The stigma of criminality functions in much the same way as Jim Crow – creating legal boundaries between them and us, allowing legal discrimination against them, removing the right to vote from millions, and essentially warehousing a disposable population of unwanted people. She calls it a new caste system.
Poor whites and people of other ethnicity are also subjected to this system of social control. Because if poor whites or others get out of line, they will be given the worst possible treatment, they will be treated just like poor blacks.
Other critics like Professor Dylan Rodriguez see the criminal justice system as a key part of what he calls the domestic war on the marginalized. Because of globalization, he argues in his book Forced Passages, there is an excess of people in the US and elsewhere. “These people”, whether they are in Guantanamo or Abu Ghraib or US jails and prisons, are not productive, are not needed, are not wanted and are not really entitled to the same human rights as the productive ones. They must be controlled and dominated for the safety of the productive. They must be intimidated into accepting their inferiority or they must be removed from the society of the productive.
This domestic war relies on the same technology that the US uses internationally. More and more we see the militarization of this country’s police. Likewise, the goals of the US justice system are the same as the US war on terror – domination and control by capture, immobilization, punishment and liquidation.
What to do?
Martin Luther King Jr., said we as a nation must undergo a radical revolution of values.
A radical approach to the US criminal justice system means we must go to the root of the problem. Not reform. Not better beds in better prisons. We are not called to only trim the leaves or prune the branches, but rip up this unjust system by its roots.
We are all entitled to safety. That is a human right everyone has a right to expect. But do we really think that continuing with a deeply racist system leading the world in incarcerating our children is making us safer?
It is time for every person interested in justice and safety to join in and dismantle this racist system. Should the US decriminalize drugs like marijuana? Should prisons be abolished? Should we expand the use of restorative justice? Can we create fair educational, medical and employment systems? All these questions and many more have to be seriously explored. Join a group like INCITE, Critical Resistance, the Center for Community Alternatives, Thousand Kites, or the California Prison Moratorium and work on it. As Professor Alexander says “Nothing short of a major social movement can dismantle this new caste system.”
May and I are really concerned for our family and our community. I know my faith will see us through this American experience and we will have answers from on high on how to empower our grand children and God’s gifts of human beings in our life. We strive to know His will for our life to help others. Pray without ceasing for us and our world.
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- Independence: “You have brains in your head. You have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own. And you know what you know. You are the guy who’ll decide where to go.” Dr. Seuss
This week has been a sheer blessing for May and I. We missed several of our kids graduate from middle school all up to High school and yesterday and today we have been apart of our grandson’s graduation and our youngest son. Johnathan and Keenan have taken major leaps to position themselves to succeed in-spite of the struggles they have had to endure. We thank God for our family. Carla Hayward my sister in law and Mother Green have sacrificed so much to keep our family members within family reach when life showed up in the lives of our kids.
Johnathan and keenan have excelled academically and scholastically in football and basketball. They know all to well about grand parents and parents struggles that separated us for a brief time. We are very thankful for the support rendered us from family. YeJohn our nephew is a very talented individual with an artistic hand, he likes to sing and cook. Yejohn wants to be different, he also has admirable attributes that I liken to myself : ROTC while achieving his diploma. I did that and went into the Navy and became a Navy Seal. I admire his tenacity in overcoming struggles in academics, but stayed focused on his goal to not be defeated because of bad work ethics.
Marie, Johnathan’s mother is another exceptional individual in my life. She over came her educational struggles while raising my grandson. She went back to school while she worked and provided a safe atmosphere for our grandson in our absence. She never followed the crowd when some family wanted to write me off, she stayed her course and even rewarded me with the honor of a grandson named after me. We all have exceptional traits of character, my wife is due to graduated in 2015 after turning her life around from serving a seven year term and twenty five years of addiction. God has given us both a clean slate.
It is my prayer that all our kids and extended family will take a look at society and the pivotal swing it has taken towards mass incarceration and apply themselves accordingly. May and I are not sugar coating our plight of life with our kids nor our in laws. We are supplying them with our “Truth” and being very transparent in our walk as to allow them the hope and determination required to succeed.
A majority (66%) of the responding colleges collect criminal justice information, although not all of them consider it in their admissions process. Private schools and four-year schools are more likely to collect and use such information than their public and two-year counterparts.
A sizable minority (38%) of the responding schools does not collect or use criminal justice information and those schools do not report that their campuses are less safe as a result. Self-disclosure through the college application or in some cases the Common Application is the most typical way that colleges and universities collect the information. A small minority of schools conduct
criminal background checks on some applicants, usually through contracting with a private company.
Most schools that collect and use criminal justice information have adopted additional steps in their admissions decision process, the most common of which is consulting with academic deans and campus security personnel. Special requirements such as submitting a letter of explanation or a letter from a corrections official and completing probation or parole are common.
Less than half of the schools that collect and use criminal justice information have written policies in place, and only 40 percent train staff on how to interpret such information.
A broad array of convictions are viewed as negative factors in the context of admissions decision-making, including drug and alcohol convictions, misdemeanor convictions, and youthful offender adjudications.If it is discovered that an applicant has failed to disclose a criminal record there is an increased likelihood that the applicant will be denied admission or have their admission offer rescinded. A slight majority of schools that collect information provides support or supervision for admitted students who have criminal records, with more emphasis on supervision rather than supportive services.
In the United States, people can land in prison for life over minor offenses. They can be locked up forever for siphoning gasoline from a truck, shoplifting small items from a department store or attempting to cash a stolen check. Sentences across the United States in the last 30 years have doubled. Roy Lee Clay, for example, received in 2013 a sentence of mandatory punishment of life without parole for refusing to accept a plea bargain of 10 years for trafficking 1kg of heroin. Even the sentencing judge found this “extremely severe and harsh”. The bigger picture: a recent Human Rights Watch report found that the threat of harsh sentences leads 97% of drug defendants to plead guilty rather than exercise their right to a public trial.
Most citizens are shocked when they hear such reports. Federal judgeJohn Gleeson of New York said that the way prosecutors use plea bargaining “coerces guilty pleas and produces sentences so excessively severe they take your breath away”. Federal judge Mark Bennett of Iowa has described the “shocking, jaw-dropping disparity” of prior-conviction enhancements to force a plea bargain in a case. But these and other shocks mean nothing without a larger shock of recognition: Americans like to punish.
We like it so much that we ignore what legal punishment means in the nation’s jails and prisons. Incarceration extends far beyond the official designation of time served. It means horrifying levels of degradation and cruelty to prisoners at all levels. Overcrowding, gang activity, endemic rape, unchecked violence and overly long sentences have turned our jails and prisons into pocket war zones.
Recent federal governmental decisions to reduce or commute overly harsh drug sentences have been commendable initiatives in response. So has the Justice Department’s decision under Eric Holder to urge early release of low-level drug criminals sentenced under overly tough laws. But these efforts are drops in a very large bucket, and the bucket has a hole in it. That hole is the American belief in retribution.
Reacting against that belief, Justice Anthony Kennedy of the Supreme Court has written “a people confident in its laws and institutions should not be ashamed of mercy”. President Obama’s decision in December tocommute the sentences of eight federal inmates of crack cocaine offenses was a step in that direction, but it was a baby step. In his first four and a half years, the president received 10,000 applications for clemency. The numbers in prison, at the cost of $167,000 a year per inmate in New York City, has moved the problem beyond palliative measures.
A combination of elements – social, economic, historical, political, religious, philosophical and legal in scope – has produced a perfect storm of punishment in America, and the most important question about our justice system’s punitive impulse is rarely asked: who do we want prisoners to become when they walk out?
In this country, a prior conviction can prevent a released prisoner from getting a job, a necessary license or public housing. State policies that deny a convicted felon the right to vote disenfranchise 5.8 million Americans, including one in 13 African-American adults. If we are to restore inmates to reasonably responsible public lives, we must change these policies, and we must begin by making time on the inside functional. We must take the idea of punishment apart and put it back together in new ways. Too many in our prisons have no way out, find nothing to do while waiting for nothing to happen, and reach for an available depravity to make existence somehow meaningful.
This country has 5% of the world’s population and 25% of its prison population. On average, western European nations incarcerate 95 per 100,000 inhabitants, while the US incarcerates a stunning 714 out of 100,000. We also put away very large numbers in solitary confinement, a sentence unknown in most other democratic countries. Over 2 million people live behind bars in the United States. That’s more than the combined populations of New Hampshire and Vermont. According to a recent report by The Sentencing Project (pdf), 159,000 of these inmates are serving life sentences, a third without the possibility of parole – and about 10,000 of them for non-violent offenses. Few other countries allow such sentences for any offense.
The size of the problem means that it will be hard to turn around. Incarceration has become big business in the United States. The states and federal government spend $80bn dollars on their punishment regimes. Whole communities now depend on prison dollars for the livelihood of their citizens. One out of nine state government employees works somewhere in corrections. Prisons employ nearly 500,000 correctional officers, and their powerful unions want to keep prisons packed. More inmates mean more jobs for union members.
The role of money grows with the rise of private prisons. A full 7% of America’s inmate population resides in commercially run enterprises, places where overcrowding becomes an aspiration instead of the problem! The more people you push into lightly guarded and therefore poorly run institutions, the greater your financial gain. The administrators of private institutions openly acknowledge this marginal cost curve. Prison beds are their “honey holes”. The profit motive in the privatization of punishment spawns every form of corruption. Count on it. In any state with a large number of private prisons, legislators are on the dole.
Many see these problems, but nearly everyone in the system has reasons to keep things the way they are. Legislators raise their profile by criminalizing more conduct. Police must maintain arrest quotas. Prosecutors need high conviction rates. Judges are handicapped by harsh sentencing guidelines and often by the need to win reelection. An average prison guard has a better salary and benefits than would be available on the open market.
Law schools are seldom better on this topic. Aspiring legal professionals are taught how to punish in large, obligatory first-year courses on criminal law. Rarely do they receive detailed instruction on the plight of the punished except in small, voluntary clinics. Even law professors wonder whether mass incarceration is the problem that most deserves their attention.
No one, however, can ignore the reality that American prisons have become a public reproach. We are throwing away too many lives by making them worse instead of better. Most crime happens early in a life span. Does so much of it still deserve a life sentence? The real shock of recognition must come here. Nothing less than the ideals of the republic are at stake in the answer. A community is ultimately defined by how it treats those under its control.
That control begins with the right to punish, but the legal right is defined today from what the inflictor may do. More functional utility for the punished is needed. We now know that long sentences promote criminal behavior in and out of prison. European minimum sentences range from one to five years. Many jurisdictions in the United States set minimums at 10 years or more. Think about what this means: a single mother of two children, aged 11 and 12, may be put away for at least 10 years – all over a very peripheral role in drugs, because she is forced to accept a prosecution’s plea bargain against a possible charge of life without parole. Think about what that means: she will emerge from a prison far away from her family, when her grown son and daughter are 21 and 22 years old. What kind of development can we expect from these prison-induced orphans, and what is the prisoner – the mother – prepared to become upon her release?
Shorter sentences, more outside solutions, better parole arrangements, more vocational skills directed toward life after prison represent only the beginning of wisdom in 21st century penology. Action must follow language. The most popular and liberal New York governor in decades, Andrew Cuomo, speaks often against mass incarceration. On 1 January 2014, the traditional date for executive pardons, he pardoned three people. All three had long been out of prison. All elected political figures fear another crime and are haunted by the charge of “soft on crime”.
No one in America is soft on crime.
If we ignore those who are so unjustly treated in the name of justice, where up the ladder of concern do the rules say that it is time to start caring? Mistreatment in rampant punishment regimes tarnishes us all, and we have to worry about what comes next. Legal punishment grows when left alone. It never stands still.
We are being tenacious in following our dream. We know we stand alone, but we strive nevertheless, Check out our passionate vision by clicking the link.
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As I was sitting this morning in contemplation of what should I do to acquire finances to open Second Chance Alliance a transitioning housing facility with the intent to reeducate “Felons”, I began to pray to receive wisdom on how to see this vision through. In the past I devoted much consideration and effort in getting the DBA and Dunn’s number and Cage number and Government.Gov registration all the while interviewing 167 times last year only to be told 88 times after being blessed to get to the final offering stage for those positions that we don’t hire felons.
Perplexed and at times totally down trodden I speculated defeat. Having 26 years in the work force as Production Supervisor and Engineering and other rolls of leadership and two degrees I figured I was a good candidate for any job. Reality sat in and I seen the hideous practices associated with the stigma of having a felony conviction. I really want to make a difference with my life as to help others with the opportunities needed not to return to a life of defeat. There are a lot of success stories of felons getting a second chance and receiving degrees and moving forward, but the numbers are staggering still for those who don’t get those opportunities.
Edward Simmons is a young man with impressive credentials: He graduated with honors from Rutgers University this year and is headed to the University of Cambridge on a prestigious Truman scholarship.
But on a typical job application, the first thing an employer might notice about Simmons is that he’s an ex-felon.
Simmons, 28, served two years in prison for dealing crack cocaine: He got out in May 2010 and has been clean since. Though he’s successfully turned his life around, he says discrimination against those with a criminal record is very real.
“There have been a lot of times that I haven’t been offered an opportunity because of the stigma,” said Simmons, a New York native. “A lot of companies have a blanket policy that excludes anyone who’s had any contact with the criminal justice system.”
In recent days, two major discrimination lawsuits have been filed alleging conviction and arrest records were used inappropriately to deny employment. The first, a class action against Accenture Inc. , holds the consulting firm discriminated by using a 10-year-old conviction record to automatically disqualify Roberto Arroyo from a full-time job even after he’d proven himself. The second alleges the U.S. Census Bureau’s requirement that all applicants be run through the FBI database and provide proof of the dispositions of any arrests, was onerous and discriminatory.
The lawsuits come as the Equal Employment Opportunity Commission works to step up enforcement in cases of discrimination related to background screening. The EEOC, in fact, is expected to release new guidelines soon that will re-emphasize the importance of analyzing screening results on an individual basis – and require employers to use empirical data in support of their hiring decisions. That means considering factors like the length of time since the offense, and what the job seeker has done since then. “Many employers have started using very fuzzy criteria,” says Sarah Crawford, senior counsel with the Washington D.C.-based Lawyers’ Committee for Civil Rights Under Law, which filed the lawsuits . “They have blanket bans on hiring people with any history at all. You can’t do that.”
(To backtrack for a sec: It’s important to remember there are no specific protections for ex-offenders under the 1964 Civil Rights Act. But restrictions on hiring people with criminal records have been found to have disparate impact on certain protected groups, and are therefore considered discriminatory. Bureau of Justice statistics, for example, show that 17 percent of African-American men have been incarcerated, compared to 8 percent of Latino men and 2.6 percent of white men. African Americans make up 13 percent of the population, but account for 38 percent of felony convictions. Latinos are twice as likely to be arrested as whites. So arbitrarily screening out anyone with a record, discriminates against blacks, Latinos and other minority populations.)
The story caught some employers off-guard: “Federal EEOC Warned Census Bureau of Likely Discrimination.” The article describes a lawsuit brought by the EEOC and others against the U.S. Census Bureau alleging the bureau’s system of criminal-background checks unlawfully discriminated against up to 100,000 Blacks and Latinos “who are more likely to have arrest records than whites.”
Although pre-employment checks are common, particularly for federal employees in a post-9/11 era, this practice is fast becoming an area of hot litigation. In 2003, the Society for Human Resource Management noted that 80 percent of its members conduct pre-employment criminal-background checks. Employers beware: The EEOC is leading the charge, but the plaintiffs’ bar is not far behind. Because background checking is usually a “systemic practice,” if it is found to be unlawful, the damage exposure could be huge.
Why Employers Conduct Criminal-Background Checks
Employers conduct criminal-background checks primarily to protect:
The general public
Their reputation and assets from legal liability
Some businesses, such as daycare centers, nursing homes, hospitals, nuclear power plants, educational institutions, transportation agencies, law enforcement, and security firms, must be more concerned than others with the safety of their customers. Even without a statutory mandate, the rise in “negligent hiring” claims with large potential damages, along with heightened sensitivity to workplace violence, post-9/11 security concerns, and increased liability of company officials, has enhanced corporate wariness of hiring high-risk applicants. Reliable criminal-background checks can assist employers’ efforts to reduce that risk.
Why Would Anyone Oppose Criminal-Background Checks?
1. Civil-liberties advocates and criminal-justice reformers oppose background checks because they often rely on inaccurate records and reduce opportunities for ex-offenders to make a full and productive return to society.
According to the EEOC, it is unfair and a violation of Title VII to rely on arrest records only, where not supported by a conviction. Even where there is a conviction, the EEOC’s position is that the applicant should not be barred for offenses that do not “present an unacceptable risk.”
Many state legislatures concerned with employability of ex-offenders are enacting or considering statutes limiting the use of criminal-background checks. For example, Hawaii limits employers’ background checks to convictions within the past 10 years that bear a direct relationship to the responsibilities of the position.
Do Criminal-Background Checks Disproportionately Screen Out People From Underrepresented Groups?
It is both conventional wisdom and the position of the EEOC that employers’ use of criminal-background checks may violate Title VII because non-whites are disproportionately represented among those with criminal records.
However, a 2006 study in the University of Chicago’s “Journal of Law and Economics” found otherwise. The study concluded that “employers who check criminal backgrounds are more likely to hire African-American workers, especially men. This effect is stronger among those employers who report an aversion to hiring those with criminal records than among those who do not.”
In theorizing why criminal-background checks lead to increased hiring of Blacks, the authors observe: “In the absence of criminal-background checks, some employers discriminate statistically against Black men and/or those with weak employment records.” As another University of Chicago professor suggested, “in the absence of accurate information about individuals’ criminal histories, employers who are interested in weeding out those with criminal records will rely instead on racial and gender proxies.” That is, they are more likely to assume the prejudicial view that non-whites have criminal records, absent the facts.
Is the EEOC Actively Seeking to Limit Criminal-Background Checks?
In 2005, the EEOC issued an informal discussion letter taking the position that an employer using a “blanket policy” of refusing to hire anyone with a history of arrest or convictions violates Title VII because the policy “disproportionately excludes members of certain racial or ethnic groups, unless the employer can demonstrate a business need for use of this criteria.”
In September 2009, the EEOC filed the lawsuit EEOC v. Freeman Companies (Federal District Court, Maryland), alleging that the company used criminal-background checks to “unlawfully deprive a class of Black, Hispanic and male job applicants of equal employment opportunities.” The case is in the discovery process. (The EEOC filed another case, EEOC v. PeopleMark [Federal District Court, Michigan], with similar allegations.) As further evidenced by its recent lawsuit against the U.S. Census Bureau, the EEOC is leading the effort to curtail employers’ use of criminal-background-check policies.
Do Criminal-Background Checks Violate Title VII?
This area of law is evolving. The cases recently filed by the EEOC will likely provide guidance to employers in formulating their policies and practices. Until then, one recent U.S. Court of Appeals (Third Circuit) case sheds some light on where the law is headed. In El v. Southeastern Pennsylvania Transportation Authority, the employer terminated a traditionally underrepresented employee who transported individuals with mental and physical disabilities when the employer’s post-hiring criminal-background check disclosed a 40-year-old conviction (with no subsequent criminal activity) for second-degree murder. The court held that the employer must demonstrate that the criminal-background check is “job related” and that the disqualification is required by “business necessity.” The court ruled that the employer adequately demonstrated the severity of the crime and the heightened vulnerability of its passengers with disabilities. The court implied that some criminal-background-check policies may violate Title VII, although the employer’s policy in this case did not.
How Can Employers Legally Conduct Criminal-Background Checks?
This has suddenly become a tricky area of the law, and until further case law is developed, employers conducting any type of routine criminal-background checks may be vulnerable to challenge. Here are several tips to assist employers:
With the assistance of your legal advisers, know the statutes, regulations and case law in your jurisdiction. There are differences among the states, and between federal law and the states, that must be taken into account in considering workplace screening policies.
Review current criminal-background-check policies for consistency with the “business necessity” requirement and the EEOC position. To the extent the EEOC’s position is upheld in the courts, employer policies that take into account the nature and severity of the offense, the length of time since conviction, and the relationship of the offense to the job sought are more likely to be upheld. If necessary, modify pertinent policies and applicant questionnaires to reflect these considerations.
Routinely audit applicant/hire files to determine whether your criminal-background-check policy disparately impacts any group. If so, explore the reasons for the disparate impact, and if it is not justified by business necessity, amend the policy and its implementation.
If this is an area of particular concern to your business, monitor your local and federal legislative developments, and examine whether your company should lobby on this issue. This area of the law is actively changing, and employers need to be vigilant in monitoring the latest developments and implementing best-practices compliance policies.
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