Outside of Prison Walls, There Still Are Barriers

Should you ever have to choose between defending yourself against an abuser…or being able to find a job? Should a minor infraction keep you from giving back to your community years after the fact? Should you have to pay for a youthful indiscretion for the rest of your life, no matter how well you have repaid your debt to society?

On Tuesday, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting to address the use of criminal arrest and conviction records as a barrier to hiring and promotion. About 65 million Americans have a criminal record, yet growing numbers of employers refuse to hire people with convictions. The EEOC meeting focused on the economic, social, and civil rights implications of this trend, and came as the Commission considers updating its guidance on background checks.

The EEOC heard testimony from three panels of experts on the best practices for employers, local, state, and federal programs and policies, and the legal standards governing employers’ consideration of criminal arrest and conviction records, respectively. Panelists described the substantial barriers that people returning from the criminal justice system face upon reentry into their communities, particularly in employment, and how these obstacles disproportionately affect people of color. They stressed the need to encourage employers to consider the individual circumstances of applicants and employees, rather than adopt one-size-fits-all employment standards.

The ACLU submitted comments to the EEOC emphasizing the effects of employers’ use of commercial background checks on low-wage workers, workers of color, and women workers. We raised concerns about the fact that some employers outsource their employment decisions to screening companies, who give applicants a simple passing or failing grade based on a computerized background check. Such procedures make it difficult for employers to take other factors into account when evaluating an applicant, including the time that has passed since the criminal conduct, evidence of the applicant’s rehabilitation, and the relationship between the offense and the job in question.

Over the last two years, the ACLU has received more than 850 reports from women and men around the country who have been refused or dismissed from employment because of their criminal record. Here are a few examples:

Ms. X is a woman of color from Miami, Florida. In 2004, she was arrested for possession of marijuana, but the case was not prosecuted. Years later, Ms. X applied to volunteer at the drama department of a city community center. To her surprise, she was told that she would not even be allowed to volunteer because of her arrest.

Ms. Y, an African American woman, has been unable to find a job since 1999, when she was arrested and convicted of a felony. When employers turn her away, however, they don’t know that she is a domestic violence survivor who was attacked by her abuser multiple times. On the day she was arrested, she was eight months pregnant and her abuser kicked her in the stomach. Ms. Y retaliated with a knife, and was subsequently arrested.

The individuals who told us their stories are people who have made mistakes, like all of us. They deserve a chance to be contributing members of society. We commend the EEOC for holding this public meeting, and hope the Commission will seize this opportunity to give employers clear guidelines on their responsibilities in making employment decisions without discriminating based on criminal records.

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