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1. ARTICLE: Need Not Apply: The Racial Disparate Impact of Pre-Employment Criminal Background Checks,

19 Geo. J. Poverty Law & Pol'y 231

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ARTICLE: Need Not Apply: The Racial Disparate Impact of Pre-Employment Criminal Background Checks

Spring, 2012

Reporter 19 Geo. J. Poverty Law & Pol'y 231 *

Length: 12774 words

Author: Roberto Concepción, Jr. *

* Civil Rights Fellow, Goldstein, Demchak, Baller, Borgen & Dardarian, 2010-2012. The opinions expressed in this Article are those of the author and do not necessarily state or reflect the views of Goldstein, Demchak, Baller, Borgen & Dardarian. First, I take this opportunity to thank Goldstein, Demchak, Baller, Borgen & Dardarian for allowing me to work on this Article while serving as a Fellow, and Columbia Law School and LatCrit for sponsoring my attendance to the Sixteenth Annual LatCrit Conference, during which I presented an earlier version of this Article and received helpful comments from LatCrit members. Second, I thank Anthony Varona for providing insightful comments on an earlier draft and assisting me in selecting an appropriate title for this piece. Third, I thank Jenny Roberts for her thoughtful suggestions on how to strengthen the Article. Finally, my thanks to the staff of the Georgetown Journal on Poverty Law and Policy for their invaluable assistance in seeing the Article through to publication. (c) 2012, Roberto Concepción, Jr.

Text

[*231] I. INTRODUCTION

The current economic downturn, characterized by the most devastating recession in generations, 1 continues to transform the employment application process into survival of the fittest. 2 Employers are increasingly using criminal background checks, a permissible practice under the Fair Credit Reporting Act ("FCRA"), 3 as a litmus test to weed out applicants allegedly more prone to counterproductive work behaviors. 4 However, this practice is resulting in the [*232] further branding of former criminal offenders with "the mark of a criminal record." 5

1 See, e.g., Catherine Rampell, Jobless Rate Dips to Lowest Level for Last 2 Years, N.Y. TIMES, Dec. 3, 2011, at A1; Op-Ed., Been Down So Long . . . , N.Y. TIMES, Dec. 3, 2011, at A22; Motoko Rich, For Jobless, Little Hope of Restoring Better Days, N.Y. TIMES, Dec. 2, 2011, at B1.

2 See Roberto Concepción, Jr., Pre-Employment Credit Checks: Effectuating Disparate Impact on Racial Minorities Under the Guise of Job-Relatedness and Business Necessity, 12 SCHOLAR 523 (2010) (noting that pre-employment credit checks result in the exclusion of racial minorities from the workplace).

3 15 U.S.C. § 1681 (2006).

4 Counterproductive work behaviors include "theft, white collar crime, absenteeism, tardiness, drug and alcohol abuse, disciplinary problems, accidents, sabotage, sexual harassment, and violence." D.S. Ones, Introduction to the Special Issue on Counterproductive Work Behaviors at Work, 10 INT'L J. SELECTION & ASSESSMENT 1 (2002). An increasing number of employers are relying on criminal background checks to pre-screen job applicants to protect themselves from potential negligent hiring lawsuits and theft. See Alfred Blumstein & Kiminori Nakamura, Redemption in the Presence of Widespread Criminal

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The story of Gene Mays vividly illustrates the collateral consequences of an arrest or conviction discovered through a criminal background check. 6 Gene, convicted of drug felonies in 1988 and 1994, applied for a position as an electrician with the City of Cincinnati in 2007. In his application, Gene disclosed his convictions and provided compelling evidence of his rehabilitation: he had remained drug-free for over a decade; maintained a steady work history; completed a five-year electrician apprenticeship program with a local union in 2006, graduating first in his class with a 98.2% average; and received an "excellent" rating by supervisors at his three apprenticeship placements in all ten categories of his evaluation. Despite Gene's evidence of rehabilitation, Cincinnati's Civil Service Commission and Metropolitan Sewer District denied him employment based on drug felonies which were then thirteen and nineteen years old, citing the city's blanket ban on hiring former criminal offenders. Although the City initially offered Gene the position, the City revoked its offer and removed him from the City's list of eligible workers.

Although employers have offered seemingly rational arguments for the use of criminal background checks, 7 research has shown that there is a point at which [*233] redemption occurs, i.e., where the risk of reoffending subsides to the level of the general population. 8 But more importantly, research has shown that former criminal convictions are not a valid predictor of counterproductive work behavior. 9 This research, combined with evidence that racial minorities are more likely to have higher incarceration rates, 10 suggests that the employment of criminal background checks as a screening mechanism can have a disparate impact on racial minorities in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 11 a position the Equal Employment Opportunity Commission ("EEOC") has long asserted. 12 Because criminal background checks are, for the most part, neither "job-related" nor "consistent with business necessity" as required by Griggs v. Duke Power Company 13 and its progeny, using them to sort out the "fit" job applicants from the "unfit" should be prohibited.

Background Checks, 47 CRIMINOLOGY 327, 328 (2009) ("Employers conduct background checks on job applicants for several different reasons. One reason may be to verify their moral character. Another reason, which is more directly related to the context of criminal history background checks, may be the desire to assess their risk of committing crimes that could cause physical, financial, and reputational damage to the organization."); NAT'L ASS'N PROF'L BACKGROUND SCREENERS, CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT PURPOSES 1, available at https://www.hrplus.com/LinkClick.aspx?fileticket=FIjnnll-I7A=&tabid=756 (last visited Jan. 25, 2012) ("Increased use of background checks by employers to pre-screen job applicants stems from the growth of claims alleging that an employer was negligent in hiring or retaining an employee who subsequently engaged in workplace violence or some other act that results in harm to a person (e.g., sexual assault) or property (e.g., theft).");see also U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF RAE T. VANN (May 17, 2007), http://www.eeoc.gov/eeoc/meetings/archive/5-16-07/vann.html.

5 Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 956 (2003) (demonstrating that criminal records close doors in the employment context); see Elizabeth A. Gerlach, Comment, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, 8 U. PA. J. LAB. & EMP. L. 981, 981 (2006); Rebecca Oyama, Note, Do Not Re(Enter): The Rise of Criminal Background Tenant Screening As a Violation of the Fair Housing Act, 15 MICH. J. RACE & L. 181, 195 (2009); Ryan D. Watstein, Note, Out of Jail and Out of Luck: The Effect of Negligent Hiring Liability and the Criminal Record Revolution of an Ex-Offender's Employment Prospects, 61 FLA. L. REV. 581, 594 (2009). The use of criminal background checks as a screening mechanism is not limited to the employment context. See James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. LEGIS. & PUB. POL'Y 177, 177 (2008) (identifying criminal records as "a negative curriculum vitae . . . used to determine eligibility for occupational licenses, social welfare benefits, employment, and housing). For example, private landlords and public housing officials have relied on criminal background checks to screen prospective tenants, citing safety concerns, to the disproportionate detriment of racial minorities. See John J. Ammann, Housing Out the Poor, 19 ST. LOUIS U. PUB. L. REV. 309

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This Article proceeds in several parts. Part II explores the purpose of FCRA and the requirements imposed upon employers interested in procuring criminal history reports, which contain records of arrests and convictions, for the purpose of evaluating a job applicant. Part III examines the statutory framework of Title VII and explores the disparate impact that the use of criminal background checks has on racial minorities, who, on average, have higher incarceration rates. Part III also discusses case law grappling with the issue of whether criminal background checks violate Title VII and suggests that such policies are neither "job-related" nor "consistent with business necessity." Part IV recommends the enactment of legislation amending FCRA to prohibit the use of criminal background checks in the employment context.

II. THE FAIR CREDIT REPORTING ACT: THE BACKDROP OF A DISCRIMINATORY EMPLOYMENT PRACTICE

Congress enacted FCRA to, in part, protect consumers from the abusive practices of lenders and consumer reporting agencies. 14 The purpose of FCRA is to "require that consumer reporting agencies adopt reasonable procedures . . . in a [*234] manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of [consumer] information." 15 FCRA defines "consumer report" (commonly referred to as "credit report") to mean:

[A]ny written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for . . . employment purposes . . . . 16

In the employment context, FCRA permits a consumer reporting agency 17 to furnish a consumer report "[t]o a person which it has reason to believe . . . intends to use the information for employment purposes." 18 But FCRA's protections extend beyond an individual's credit history to include criminal records. 19 FCRA provides that a consumer report may not contain records of arrest or "[a]ny other adverse item of information, other than records of convictions of crimes, which antedate the report by more than seven years." 20 FCRA does not make such an

(2000); Corinne A. Carey, No Second Chance: People with Criminal Records Denied Access to Public Housing, 36 U. TOL. L. REV. 545 (2005); Eric Dunn & Marina Grabchuk, Background Checks and Social Effects: Contemporary Residential Tenant- Screening Problems in Washington State, 9 SEATTLE J. SOC. JUST. 319 (2010); Oyama, supra.

6 Gene's Story, OHIO JUSTICE & POLICY CTR., http://vimeo.com/6055716 (last visited Jan. 25, 2012).

7 Ultimately, employers rely on the argument that past behavior is a predictor of future behavior. See Brent W. Roberts et al., Predicting the Counterproductive Employee in a Child-to-Adult Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1427 (2007) ("The assumption behind screening applicants is that people's history, both in terms of what they have and what they typically do, will predict how they behave on the job. This assumption is derived in part from the perspective that there will be some continuity in behavior and personality, such that past behavior will predict future behavior and personality traits will be stable over long periods of time.").

8 See Blumstein & Nakamura, supra note 4, at 332-33.

9 Roberts et al., supra note 7.

10 See U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF LAURA MOSKOWITZ (NOV. 20, 2008), http://www.eeoc.gov/eeoc/meetings/11-20-08/moskowitz.cfm.

11 42 U.S.C. § 2000e (2006).

12 U.S. EQUAL EMP'T OPPORTUNITY COMM'N, EEOC POLICY STATEMENT ON THE ISSUE OF CONVICTION RECORDS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. § 2000E ET SEQ. (1987), available at http://www.eeoc.gov/policy/docs/convictl.html; U.S. EQUAL EMP'T OPPORTUNITY COMM'N, 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. (1990), available at http://www.eeoc.gov/policy/docs/arrest_records.html.

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exception for records of criminal convictions. Thus, an employer may procure a prospective employee's consumer report with a criminal conviction that occurred decades before the date of the report.

Employers interested in procuring a consumer report for "the purpose of evaluating a consumer for employment, promotion, reassignment[,] or retention [*235] as an employee" 21 are required to provide advanced written notification to the job applicant and obtain written authorization from her. 22 If an employer decides to use the findings in the consumer report either in whole or in part to take an adverse action, which includes "a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee," 23 then the employer must provide the current or prospective employee with a copy of the report as well as a description of her rights before taking that adverse action. 24 Although a current or prospective employee must authorize the procurement of a consumer report, employers are allowed to condition employment on her written authorization to procure such a report. 25 The current legal regime, as a result, has permitted the securing of criminal background checks to develop into the widespread practice it has become.

III. EFFECTUATING DISPARATE IMPACT UNDER THE GUISE OF JOB-RELATEDNESS AND BUSINESS NECESSITY

Title VII of the Civil Rights Act of 1964, as amended, 26 makes it an unlawful employment practice for an employer "to fail 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." 27 In Griggs v. Duke Power Company, 28 the United States Supreme Court held that Title VII "not only proscribe[d] overt discrimination but also practices that are fair in form, but discriminatory in operation," 29 namely "practices, procedures, or tests neutral on their face, and even neutral in terms of intent . . . that 'freeze' the status quo of prior discriminatory employment practices." 30 According to the Court, "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." 31 Put simply, disparate impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly

13 Griggs v. Duke Power Co., 401 U.S. 424 (1971).

14 See Elwin Griffith, The Quest for Fair Credit Reporting and Equal Credit Opportunity in Consumer Transactions, 25 U. MEM. L. REV. 37, 38 (1994).

15 15 U.S.C. § 1681(b) (2006).

16 Id. at § 1681a(d)(l) (emphasis added).

17 Consumer reporting agencies must observe certain compliance procedures. For example, a consumer reporting agency preparing a consumer report "shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Id. at § 1681e(b). A consumer reporting agency that furnishes a consumer report for employment purposes and relies on adverse public information must either (1) notify the consumer or (2) maintain strict procedures designed to ensure that the information is complete and up to date. Id. at § 1681k(a).

18 Id. at § 1681b(a)(3)(B).

19 See, e.g., Burghy v. Dayton Racquet Club, Inc., 695 F. Supp. 2d 689, 693 (S.D. Ohio 2010) ("Consumer reports may address topics broader than an individual's credit history; for example, consumer reports may uncover criminal records."). In most jurisdictions, criminal court records provide the following: case/file number; physical description or personal identifiers (i.e., date of birth, social security number); date of offense, arrest date and filing date; type of offense; and disposition, if available. NAT'L ASS'N PROF'L BACKGROUND SCREENERS, supra note 4, at 3.

20 15 U.S.C. §§ 1681c(a)(2), (5) (2006). These provisions do not apply to a consumer report to be used in connection with "the employment of any individual at an annual salary which equals, or which may reasonably be expected to equal $ 75,000 or more." Id. at § 1681c(b)(3). It should be noted that "there is a significant difference between what a [consumer reporting agency] can report versus what an employer legally can use when making employment decisions . . . .The restrictions on an employer

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on one group than another and cannot be justified by business necessity." 32 The [*236] discussion below explores the reasons pre-employment criminal background checks fall more harshly on racial minorities and then argues that these checks are neither job-related nor consistent with business necessity as required to preserve the challenged practice.

A. Disparate Impact of Pre-Employment Criminal Background Checks on Racial Minorities

Although Title VII was enacted over forty-five years ago to achieve equality of employment opportunities, racial minorities continue to be paid less than Whites 33 and are more likely to hold low-paying jobs lacking advancement opportunities. 34 Because of the continuing presence of employment barriers (among other impediments), Blacks and Hispanics have lower household incomes, 35 are more likely to be living in poverty, 36 and are more likely to be living without health insurance than Whites. 37

To exacerbate the plight of racial minorities, employers are increasingly relying on pre-employment criminal background checks as a screening mechanism. According to a 2004 study performed by the Society of Human Resource [*237] Management, the percentage of employers conducting criminal background checks has risen from 51% in 1996 to 80% in 2003 (86% for large employers). 38 In 2010, the percentage rose to 92%. 39 The extent to which criminal background checks are used may be a function of industry. 40 In the retail industry, for example, 94.3% of retailers used criminal conviction checks as a "pre-employment screening measure" in 2008, and estimates suggest that retailers will significantly increase their reliance on these checks. 41

At the same time that employers are increasing their usage of pre-employment criminal background checks, the number of individuals with criminal records in the United States has soared to over one in four adults. 42 The approximately sixty-five million American adults with criminal records are affected by this screening mechanism, 43 the brunt of which is felt by Blacks and Hispanics, as they are overrepresented in the criminal justice system. Blacks, for example, constitute approximately 12.3% of the U.S. population, 44 yet they account for 28.2% of total

considering criminal histories for employment purposes are driven primarily by state law and are much more limiting [than those on consumer reporting agencies]." NAT'L ASS'N PROF'L BACKGROUND SCREENERS, supra note 4, at 3.

21 15U.S.C.§ 1681 (a)(h) (2006).

22 Id. at § 1681b(b)(2)(A).

23 Id. at § 1681a(k)(1)(B)(ii).

24 Id. at § 1681b(b)(3)(A).

25 See, e.g., Kelchner v. Sycamore Manor Health Ctr., 305 F. Supp. 2d 429 (M.D. Pa. 2004).

26 42 U.S.C. § 2000e (2006).

27 Id. at § 2000e-2(a).

28 Griggs v. Duke Power Co., 401 U.S. 424 (1971).

29 Id. at 431.

30 Id. at 430.

31 Id. at 432.

32 Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). In Ricci v. DeStefano, the Supreme Court held that, "under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate- impact liability if it fails to take the . . . discriminatory action." 129 S. Ct. 2658, 2677 (2009). According to some scholars, this

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arrests, 45 and 39% of prison and jail inmates. 46 Overall, Blacks are incarcerated at a rate of six times more than that of Whites. 47 Similarly, Hispanics [*238] constitute approximately 15.1% of the overall population, 48 but almost 20% of the prison and jail population. 49 Estimates suggest that Hispanics are three times more likely to be arrested than Whites. 50 Moreover, most arrests that appear on criminal background checks are for minor crimes and non-criminal offenses. 51 According to a 2008 analysis of eleven state courts, misdemeanors comprised 79% of the total caseload in those courts. 52 Nationwide, only 4.2% and 12.5% of the over thirteen million arrests (except traffic violations) in 2010 were for violent crimes and property crimes, respectively. 53 The higher numbers of arrests were for drug abuse violations (12.5%), driving under the influence (10.8%), and larceny-theft (9.7%). 54 While only a fraction of these arrests result in convictions, the arrests will appear on a routine criminal background check. 55

The effect of these racially disparate statistics 56 is substantial, both for former criminal offenders and for society. In general, a criminal record reduces the likelihood of a callback or employment offer by nearly 50%. 57 But the penalty of a criminal record is significantly more severe for Blacks than Whites. 58 "Among [*239] [B]lacks without criminal records, only 14% received callbacks, relative to 34% of [W]hite non[-]criminals. . . . In fact, even [W]hites with criminal records received more favorable treatment (17%) than [B]lacks without criminal records (14%)." 59 Painfully revealing is the fact that "race continues to play a dominant role in shaping employment opportunities, equal to or greater than the impact of a criminal record." 60 Putting aside the racial disparity, research has shown that former criminal offenders rely, in part, on employment to desist from crime. 61 Preventing former criminal offenders, of a racial minority or not, from fully participating as active members of society through employment thus permits them to fall into a cycle of recidivism and has the additional negative effect of placing the general public at risk. 62

Recognizing the potential discriminatory consequences of pre-employment criminal background checks, the EEOC has had a longstanding position that criminal background check policies can have a disparate impact on racial minorities in violation of Title VII. 63 The EEOC's E-RACE Initiative has acknowledged that facially neutral

holding seems to suggest that Title VII's disparate impact framework is unconstitutional. See, e.g., Compliance Efforts, 123 HARV. L. REV. 282, 283 (2009) ("Ricci entrenches the Court's colorblind approach to antidiscrimination law, and in so doing, strongly suggests that Title VII's disparate impact provisions are unconstitutional because they mandate discriminatory compliance efforts unjustified by any compelling state interest. Ricci thus leaves the Court with a troubling dilemma it must eventually confront: either retreat from its current colorblind approach to equal protection, or rule disparate impact--a doctrine firmly ensconced in history, precedent, and congressional approval--unconstitutional."). Until the day on which "the war between disparate impact and equal protection [is] waged," however, the disparate impact analysis will continue to serve as an anti- discrimination tool. Ricci, 129 S. Ct. at 2683 (Scalia, J., concurring). In United States v. Vulcan Society, Inc., a case decided after Ricci, for example, the federal government (and the intervenors) challenged, under Title VII, New York City's reliance on two written examinations used to appoint entry-level firefighters. 637 F. Supp. 2d 77, 80 (E.D.N.Y. 2009). The court found that the tests resulted in a disparate impact on African-American and Hispanic firefighters, and that the city had failed to demonstrate the business necessity for such a test. Id. at 131-32. At the very outset, the court noted that Ricci did not control the outcome of the case at hand, which presented "the entirely separate question of whether . . . the City's use of [e]xams . . . has actually had a disparate impact upon black and Hispanic applicants." Id. at 83.

33 See BUREAU OF LABOR STATISTICS, DEP'T OF LABOR, USUAL WEEKLY EARNINGS OF WAGE AND SALARY WORKERS: SECOND QUARTER 2011, at tbl.2 (2011) (stating that, during the second quarter of 2011, the median earnings for Whites working full time were $ 770 per week, compared with $ 623 for Blacks and $ 565 for Hispanics), http://www.bls.gov/news.release/wkyeng.nrO.htm.

34 See E.E.O.C, CHARACTERISTICS OF PRIVATE-SECTOR EMPLOYMENT (2003), available at http://www.eeoc.gov/eeoc/statistics/reports/ceosummit/characteristics.pdf.

35 See U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2008, at 5, 8 (2009), available at http://www.census.gov/prod/2009pubs/p60-236.pdf (reporting that, in 2008, the income of non- Hispanic White, African American, and Hispanic households was $ 55,530, $ 34,318, and $ 37,913, respectively. The median

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employment policies on the basis of arrest and conviction records may "significantly disadvantag[e] applicants and employees on the basis of race." 64

1. Conviction Records

With respect to conviction records, the EEOC's "underlying position [is] that an employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population." 65 Thus, absent business necessity, the EEOC holds that such a policy or practice violates Title VII. 66 In deciding not to hire or to terminate the employment of a former criminal offender (who belongs to a racial minority group), an employer must show that it considered the following three factors in making its business necessity determination: (1) the nature and gravity of the offense or offenses; [*240] (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought. 67 The EEOC also continues to hold that, "where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII." 68

The EEOC's position on this issue is supported by judicial authority. In the seminal case of Green v. Missouri Pacific Railroad Company, 69 the Eighth Circuit considered whether "an absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense" had a disparate impact on Blacks. 70 The court explained that a plaintiff can satisfy his prima facie burden by relying on one of the following three types of statistical evidence: (1) statistics showing that the employment practice in question excludes Blacks, either nationally or regionally, at a substantially higher rate than Whites; (2) evidence comparing the percentages of Black and White job applicants excluded by the employment practice; or (3) data comparing the percentage of Blacks employed by the organization with the percentage of Blacks in the region. 71 The plaintiff, Buck Green, relied

household income for African Americans and Hispanics was 62% and 68%, respectively, of the median income of White households).

36 Id. at 15 (The poverty rates for Whites in 2008 was 8.6%, while the poverty rate for African Americans and Hispanics was 24.7% and 23.2%, respectively.).

37 Id. at 23 (In 2008, the uninsured rate for Whites was 10.8%. The uninsured rate for African Americans and Hispanics was 19.1% and 30.7%, respectively.).

38 SOC'Y FOR HUM. RES. MGMT., WORKPLACE VIOLENCE SURVEY 19 (2004). A number of large companies screen all job applicants through the use of criminal background checks, including Wal-Mart, General Motors, Ford Motor, General Electric, Citigroup, International Business Machines, and American International Group. Ann Zimmerman & Kortney Stringer, As Background Checks Proliferate, Ex-Cons Face A Look on Jobs, WALL ST. J., Aug. 26, 2004, at B1.

39 SOC'Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL BACKGROUND CHECKS 3 (2010).

40 In response to increasing employer concern of internal theft, particularly within the retail industry, retail theft contributory databases have emerged as a way of "quickly identify[ing] applicants with history of theft and/or fraud before a hiring decision is made." Retail Theft Contributory Database, LEXISNEXIS RISK SOLUTIONS, http://www.lexisnexis.com/risk/solutions/retail- theft-contributory-database.aspx (last visited Jan. 25, 2012). These databases provide employers with access to theft and shoplifting cases submitted by employers across the country and internal data shared by other employers that may not be available elsewhere (e.g., court records).Id.; see also Pre-Employment Screening Services, NAT'L RETAIL MUT. ASS'N, http://www.theftdatabase.com/ (last visited Jan. 25, 2012);National Theft Database, HIRERIGHT,

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on the first, demonstrating that the employment practice disqualified Black job applicants (5.3%) at a substantially higher rate than Whites (2.23%). The court ultimately found that the employer could not prove that its blanket policy of exclusion based on a job applicant's prior conviction constituted business necessity:

We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed. This is particularly true for [B]lacks who have suffered and still suffer from the burdens of discrimination in our society. To deny job opportunities to these individuals because of some conduct [that] may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden. 72

2. Arrest Records

As for arrest records, the EEOC has asserted that "since the use of arrest [*241] records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment." 73 Unlike conviction records, which "constitute reliable evidence that a person engaged in the conduct alleged since the criminal justice system required the highest degree of proof ('beyond a reasonable doubt') for a conviction . . . arrests alone are not reliable evidence that a person has actually committed a crime." 74 The use of arrest records, the EEOC has concluded, requires an additional inquiry. 75 "Even where the conduct alleged in the arrest record is related to the job at issue, the employer must evaluate whether the arrest record reflects the applicant's conduct." 76 More specifically, the employer should "examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denied engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility." 77 In theory, such an examination would offer the applicant an opportunity to provide the employer with all of the relevant information for it to consider the applicant; such an examination sounds troubling, however, to the extent an employer assumes full rein to try the employee for any potential offenses committed. Realistically, whether an employer would invest the resources in conducting a "trial by employer," rather than deny employment to the applicant, seems unlikely. 78

http://www.hireright.com/National-Theft-Database.aspx (last visited Jan. 25, 2012);Retail Theft & Shoplifting Database, CORRA GRP., http://www.corragroup.com/retail-theft-database.html (last visited Jan. 25, 2012).

41 Richard C. Hollinger & Amanda Adams, 2008 NATIONAL RETAIL SECURITY SURVEY: FINAL REPORT 16, 19 (2008).

42 NAT'L EMP'T LAW PROJECT, 65 MILLION "NEED NOT APPLY": THE CASE FOR REFORMING CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT 1 (2011), available at http://www.nelp.org/page/- /65_Million_Need_Not_Apply.pdf.

43 Id. at 3.

44 U.S. CENSUS BUREAU, 2006-2008 AMERICAN COMMUNITY SURVEY 3-YEAR ESTIMATES: DATA PROFILE HIGHLIGHTS, http://factfinder.census.gov/servlet/ACSSAFFFacts (last visited Jan. 25, 2012).

45 FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES: 2007, at tbl.43 (2008), http://www2.fbi.gov/ucr/cius2007/data/table_43.html (last visited Jan. 25, 2012).

46 WILLIAM J. SABOL & HEATHER COUTURE, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2007, at 7 tbl.9 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pim07.pdf.

47 PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 34 tbl.A-6 (2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf.

48 U.S. CENSUS BUREAU, supra note 44.

49 SABOL & COUTURE, supra note 46, at 7 tbl.9.

50 STATEMENT OF LAURA MOSKOWITZ, supra note 10, at 4. But see U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF JUAN CARTAGENA (July 26, 2011), http://www.eeoc.gov/eeoc/meetings/7-26-11/cartagena.cfm ("[D]ata

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In Gregory v. Litton Systems, 79 the leading case dealing with an employer's use of arrest records, the district court examined the employer's "policy of disqualifying frequently-arrested persons from employment." 80 The court observed that Blacks are arrested substantially more frequently than Whites, ruling that "any policy that disqualifies prospective employees because of having been arrested once, or more than once, discriminates in fact against [Black] applicants." 81 The court ultimately granted relief to the plaintiff, noting that the employer provided "no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees." 82

[*242] B. Pre-Employment Criminal Background Checks Are Neither Job-Related Nor Consistent with Business Necessity

After the plaintiff has demonstrated that the "respondent uses a particular employment practice that causes a disparate impact on the basis of race," the defendant bears the burden of "demonstrat[ing] that the challenged practice is job related for the position in question and consistent with business necessity." 83 This standard, now codified in Title VII, originated from Griggs, in which the Court rejected two job requirements because neither was "shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted . . . without meaningful study of their relationship to job-performance ability." 84 As the Court noted, because there are certain employment procedures "that operate as 'built-in headwinds' for minority groups," 85 "[t]he touchstone is business necessity." 86 Four years after Griggs, the Court fleshed out this requirement in Albemarle Paper Company v. Moody. 87 "Job relatedness cannot be proved through vague and unsubstantiated hearsay," 88 but instead must be shown "by professionally acceptable methods, to be 'predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" 89 Provided the validation study is reliable, an employer may utilize the test "in jobs other than those for which it has been professionally validated only if there are 'no significant differences' between the studied and unstudied jobs." 90

collection of criminal justice statistics is notoriously inconsistent as far as Latinos are concerned, while, simultaneously, the field of criminology research is skewed towards documenting the problems of racial disparities in a black/white binary.").

51 U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF ADAM KLEIN (July 26, 2011), http://www.eeoc.gov/eeoc/meetings/7-26-11/klein.cfm.

52 ROBERT C. LAFOUNTAIN ET AL., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT CASELOADS 47 (2010), available at http://www.ncsconline.org/d_research/csp/2008_files/EWSC-2008- Online%20Version%20v2.pdf; see also NEW YORK STATE ADULT ARRESTS: 2001-2010 (2011), available at http://criminaljustice.state.ny.us/crimnet/ojsa/arrests/NewYorkState.pdf (noting almost 600,000 arrests in 2010, with felonies comprising slightly more than 160,000 of that total); Steve W. Perry,Prosecutors in State Courts, in U.S DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN 6 (2006) ("In 2005 State court prosecutors reported closing over 2.4 million felony cases and nearly 7.5 million misdemeanor cases"), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/psc05.pdf.

53 FED. BUREAU OF INVESTIGATION, CRIMES IN THE UNITED STATES, 2010, ARRESTS (2011), available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/persons-arrested/arrestmain.pdf. Because a person may be arrested multiple times during a year, these arrest figures do not reflect the number of individuals who have been arrested.Id.

54 Id.

55 STATEMENT OF ADAM KLEIN, supra note 51.

56 According to researchers, "these racial disparities are largely rooted in law enforcement practices mat disproportionately target people of color, such as the war on drugs, causing higher arrest and conviction rates in some minority communities." STATEMENT OF LAURA MOSKOWITZ, supra note 10. The reasons for these racial disparities are beyond the scope of this Article.

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As explained previously, employers may consider an applicant's criminal record only if they can justify their policy or practice under the business necessity exception. Recently, the Third Circuit, in El v. SEPTA, 91 offered the most in-depth court analysis thus far of the legality of relying on an applicant's criminal record to make hiring decisions. 92 The plaintiff, Douglas El, worked for a subcontractor of SEPTA as a paratransit driver to provide "door-to-door and curb-to-curb [*243] transportation service for people with mental and physical disabilities." 93 Under the subcontract, SEPTA disallowed hiring anyone with, inter alia, a violent criminal conviction. 94 Within the first few weeks of El's employment, his direct employer (the subcontractor) discovered that El had a forty-year-old conviction for second-degree murder, a crime he committed when he was fifteen years old. 95 Based solely on this conviction, El's employer fired him. 96 El subsequently filed suit against SEPTA on a disparate impact theory under Title VII. 97

In determining whether SEPTA's policy met the business necessity exception, the Third Circuit first noted that the standards set out in Griggs and its progeny were inapplicable. 98 According to the court, "our standards of 'minimum qualifications necessary for successful performance of the job in question' is appropriate in test-score cases, but awkward here because 'successful performance of the job' in the usual sense is not at issue. . . . [T]he standard is worded to address ability, not risk." 99 The court then distinguished Green on its facts. First, Green "did not require the employee to be alone with and in close proximity to vulnerable members of society," and second, "the hiring policy in Green prevented hiring a person with any criminal conviction . . . while SEPTA's policy only prevents consideration of people with certain types of convictions." 100

The Third Circuit then proceeded by briefly discussing the relevant EEOC guidelines. 101 As previously noted, under the EEOC's current guidelines, employers may avoid liability under Title VII only if they show a business necessity by proving that they considered the following three factors: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought. 102 The court stated that the guidelines "do not speak to whether an employer can take these factors into account when crafting a bright-line policy, nor do they speak to whether an employer justifiably can decide that

57 U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF DEVAH PAGER (NOV. 20, 2008), http://archive.eeoc.gov/abouteeoc/meetings/11-20-08/pager.html. This finding is consistent with that of a survey conducted to determine the willingness of employers to hire former criminal offenders--"over 40 percent of employers indicated that they would 'probably' or 'definitely' not be willing to hire an applicant with a criminal record for a job not requiring a college degree." Harry J. Holzer et al.,How Willing Are Employers to Hire Ex-Offenders?, 23 Focus 40, 41 (2004), available at http://www.irp.wisc.edu/publications/focus/pdfs/foc232h.pdf.

58 Pager, Mark of a Criminal Record, supra note 5, at 957.

59 Id. at 957-58. Pager recognizes that the difference between 17% and 14% is not significantly different from zero, but notes that, "[g]iven, however, that we would expect black noncriminals to be favored (rather than equal) relative to criminals of any race, the relevant null hypothesis should be positive rather than zero, thus generating an even larger contrast." Id. at 958 n.34; see also STATEMENT OF DEVAH PAGER, supra note 57 ("[T]he magnitude of the criminal record penalty suffered by [B]lack applicants (60%) is roughly double the size of the penalty for [W]hites with a record.").

60 Pager, Mark of a Criminal Record, supra note 5, at 958.

61 See Blumstein & Nakamura, supra note 4, at 331.

62 See Zimmerman & Stringer, supra note 38.

63 EEOC POLICY STATEMENT, supra note 12; GUIDANCE ON THE CONSIDERATION OF ARREST RECORDS IN EMPLOYMENT DECISIONS, supra note 12.

64 Why Do We Need E-RACE?, U.S. EQUAL EMP'T OPPORTUNITY COMM'N, E-RACE (ERADICATING RACISM AND COLORISM IN EMPLOYMENT) INITIATIVE, http://www.eeoc.gov/eeoc/initiatives/e-race/why_e-race.cfm (last visited Jan. 25, 2012).

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certain offenses are serious enough to warrant a lifetime ban." 103 Additionally, the court determined that the guidelines were not entitled to "great deference," but rather, "deference in [*244] accordance with the thoroughness of its research and the persuasiveness of its reasoning." 104 Because the court found that the guidelines did not "substantively analyze the statute," it did not adopt the EEOC's tripartite test. 105 Instead, the court used its own previously announced standards to establish a broader test that requires an employer's policy to "accurately [but not perfectly] distinguish between applicants that pose an unacceptable level of risk and those that do not." 106 The court continued, "We would expect that someone at SEPTA would be able to explain how it decided which crimes to place into each category, how the seven-year number was selected, and why SEPTA thought a lifetime ban was appropriate for a crime like simple assault." 107 The court expressed skepticism that SEPTA had a real basis for its policy. 108 But because El did not present any rebuttal evidence, the court had no choice but to uphold the trial court's grant of summary judgment. 109 Had El, for example, "hired an expert who testified that there is [a] time at which a former criminal is no longer any more likely to recidivate than the average person," the jury would have been presented with a factual question to resolve. 110

El did not prevail, but the Third Circuit, in analyzing the relevant Supreme Court cases, provided two golden nuggets for plaintiffs litigating these cases in the future: (1) "bare or 'common-sense'-based assertions of business necessity" are unacceptable, and instead, "some level of empirical proof that [the] challenged hiring criteria actually predicted job performance" is required; and (2) an employer's reliance on '"more is better'-style reasoning to justify [its] policies" will not be permitted. 111 Reliance on litigation in this context seems unnecessary, however, given that criminal history is not indicative of job performance, criminal history records are notoriously inaccurate, and relying on criminal history records as an employment screening mechanism seriously undermines the rehabilitative goal of the criminal justice system.

1. Criminal History Is Not Indicative of Job Performance

65 EEOC POLICY STATEMENT, supra note 12 (citing a number of EEOC decisions).

66 Id.

67 Id.

68 Id. Policing such an unlawful bar is particularly difficult given that an employer may have a number of pretextual reasons available to it in its arsenal for denying employment to an applicant.

69 Green v. Mo. Pac. R.R. Co., 523 F.2d 1290 (8th Cir. 1975).

70 Id. at 1292.

71 Id. at 1293-94.

72 Id. at 1298. After Green had been remanded, it was appealed back up to the Eighth Circuit, which affirmed the lower court's injunctive order stating that, although absolute bars to employment based on a previous conviction are impermissible, an employer may still consider "an applicants' [sic] prior criminal record as a factor in making individual hiring decisions so long as [the employer] takes into account the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence, and the nature of the job for which the applicant has applied." Green v. Mo. Pac. R.R. Co., 549 F.2d 1158, 1160 (8th Cir. 1977).

73 POLICY GUIDANCE, supra note 12.

74 Id. (citing Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957) ("'The mere fact that a [person] has been arrested has very little, if any, probative value in showing that he has engaged in misconduct.")).

75 Id.

76 Id.

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Under Griggs and its progeny, an employer interested in defending a pre-employment practice of criminal background checks must prove that it engaged in a "meaningful study of their relationship to job-performance ability" and "successful performance." 112 And under El, an employer's policy must "accurately distinguish between applicants that pose an unacceptable level of risk [*245] and those that do not." 113 Despite the number of seemingly rational arguments made for the use of criminal history in employment selection, criminal history has received little or no research attention as a predictor of employee performance. 114 Instead, employers have relied on recidivism as a measure for a prospective employee's qualifications, 115 in part because they recognize "the strong positive relationship between past and future criminal offending," which has been validated by studies. 116 As some researchers have observed, however, "these employers would also be well advised by some interlinked lines of research in criminology, which present equally strong evidence of desistance from crime in a subpopulation of those with past offenses." 117 Stable marriage, employment, age, and time clean are powerful predictors of such desistance. 118

Although employers may consider past criminal behavior to be a useful sign of similar future behavior, this information has decreasing value over time. 119 The risk of recidivism has been shown to decrease with time clean. 120 As a result, there can be a point at which redemption has occurred, i.e., where the risk of reoffending has dropped to the level of a reasonable comparison group. 121 Notably, this is exactly the type of evidence that the El court stated would have been sufficient to survive summary judgment. 122 The problem lies in the fact that little empirical information exists that can help to establish that point, thus forcing employers to set their own arbitrarily selected cutoff points, inevitably with a conservative bias. 123 Given the importance of this issue, Dr. Alfred Blumstein and Dr. Kiminori Nakamura sought to estimate the declining hazard of rearrests 124 with time clean since the last offense. They discovered that the point of redemption, i.e., "where the recidivism risk declines and crosses the level of the general population of the same age," 125 varies by offense types and ages at first arrest. 126 For example, those who are arrested for robbery take about nine [*246] years for sixteen-year-olds, about eight years for eighteen-year-olds, and about four years for twenty-year-olds, "to be similar to their age cohorts from the general population in terms of the probability of an arrest." 127 But for burglary, those values are

77 Id.

78 STATEMENT OF JUAN CARTAGENA, supra note 50 (stating that "such an inquiry rarely, if ever, occurs and the arrest alone in places that permit such inquiries, like New Jersey, will be used [as] a pretext for denial of employment that would otherwise be unlawful").

79 Gregory v. Litton Sys., 316 F. Supp. 401 (C.D. Cal. 1970), modified on other grounds, 472 F.2d 631 (9th Cir. 1972).

80 Gregory, 316 F. Supp. at 402.

81 Id. at 403.

82 Id. at 402.

83 42 U.S.C. § 2000e-2k(1)(A)(i)(2006).

84 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Interpreting the "job related for the position in question and consistent with business necessity" standard adopted by Title VII, the Third Circuit, in Lanning v. SEPTA, held that "in order to show the business necessity of a discriminatory cutoff score an employer must demonstrate that its cutoff measures the minimum qualifications necessary for successful performance of the job in question." Lanning v. SEPTA, 181 F.3d 478 (3rd Cir. 1999).

85 Griggs, 401 U.S. at 432.

86 Id. at 431.

87 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).

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about five years, four years, and three years, respectively. 128 These statistics undoubtedly add value to the discourse, yet recidivism has still not been shown to be correlated with job performance. 129

Recognizing the need for examination of the validity of criminal history as a predictor of counterproductive work behaviors, Dr. Brent W. Roberts, Dr. Peter D. Harms, Dr. Avshalom Capsi, and Dr. Terri E. Moffitt created a study in which they tested, in part, whether criminal convictions were positively related to counterproductive work behaviors. 130 According to their study,

[A]dolescent criminal convictions did not predict [counterproductive work behaviors] in young adulthood. Given the similarity between the two constructs of conviction and [counterproductive work behaviors], one would expect that past violent convictions, for example, would be related to aggressive behaviors at work. In fact, criminal conviction actually had small negative relationships with fighting or stealing at work. 131

Thus, the assumption that employers are eliminating potential problem employees by screening them for past criminal behavior may be invalid. 132

2. Criminal History Records Are Notoriously Inaccurate

For an instrument that has been afforded such weight, criminal history records are notoriously inaccurate and may include errors sufficiently serious to warrant denial of employment. 133 In particular, "[c]ommercial criminal record databases [*247] and services, especially name-based searches, have been found to be rife with error and may report irrelevant arrest records or outdated convictions that have been expunged from an individual's history." 134 Typical errors include "overreporting (i.e., when a record about a different person with the same name as the applicant is reported as being a potential match for the applicant), records based on criminal identity theft (i.e., where an actual arrestee gives a false name or claims to be another actual person), reports containing expunged records, and mundane clerical errors." 135

88 Id. at 428 n.23.

89 Id. at 431 (quoting 29 C.F.R. § 1607.4(c)).

90 Albemarle, 422 U.S. at 432 (quoting 29 C.F.R. § 1607.4(c)(2)).

91 El v. SEPTA, 479 F.3d 232 (3d Cir. 2007).

92 U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF ADAM T. KLEIN (May 16, 2007), http://www.eeoc.gov/eeoc/meetings/archive/5-16-07/klein.html.

93 El, 479 F.3d at 235.

94 Id. SEPTA's policy required its drivers have: "e. no record of driving under [the] influence (DUI) of alcohol or drugs, and no record of any felony or misdemeanor conviction for any crime of moral turpitude or of violence against any person(s); f. no record of any conviction within the last seven (7) years for any other felony or any other misdemeanor in any category referenced below . . . , and not be on probation or parole for any such crime, no matter how long ago the conviction for such crime may be." Id. at 236.

95 Id. at 235-36.

96 Id. at 235.

97 Id. at 236.

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Government criminal background checks, too, have accuracy issues. A task force, consisting of the Bureau of Justice Statistics, the Florida Department of Law Enforcement, the Department of Housing and Urban Development, and the FBI, formed "to compare the accuracy of identifications made using name checks . . . and those using a fingerprint-based search of the FBI's records" and concluded that "when compared to fingerprint- verified criminal histories, name-checks yielded 11.7% false negatives and 5.5% false positives." 136 Name checks alone would thus result in large numbers of individuals being improperly disqualified for employment, and individuals who potentially pose some risk because of their criminal past not being discovered. 137 On the basis of poor data [*248] integrity alone, 138 the value of pre-employment criminal background checks as a screening mechanism should be reassessed.

3. Relying on Criminal History Records as an Employment Screening Mechanism Undermines the Rehabilitative Goal of the Criminal Justice System

The traditionally recognized purposes of the American criminal justice system are to punish, incapacitate, and rehabilitate criminal offenders, but some scholars argue that rehabilitation has been largely abandoned and replaced with a greater emphasis on incapacitation and punishment. 139 To support their abandonment of rehabilitation argument, scholars have pointed to the country's high incarceration and recidivism rates. 140 But there are effective strategies to combating recidivism. As stated previously, research has shown that employment is one of the strongest predictors of desistance from crime. 141 Additionally, certain characteristics of employment are more effective at reducing recidivism than others. 142 For example, research has shown that better quality jobs and higher wages reduce the likelihood of recidivism. 143 Despite the correlation between employment and recidivism, unemployment rates for former criminal offenders range from 25 to 40%, and only a fraction of them are able to find jobs paying a living wage. 144

To the extent that rehabilitation remains a goal of the American criminal justice system, the use of pre-employment criminal background checks must be seriously questioned. 145

98 Id. at 242.

99 Id. at 243.

100 Id.

101 Id.

102 Id.; see also EEOC POLICY STATEMENT, supra note 12.

103 El v. SEPTA, 479 F.3d 232, 243 (3d Cir. 2007).

104 Id. at 244.

105 Id.

106 Id. at 244-45.

107 Id. at 248.

108 Id.

109 Id.

110 Id. at 247.

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IV. POTENTIAL SOLUTION TO A NATIONAL PROBLEM

Amid skyrocketing unemployment, the issue of the validity of pre-employment [*249] criminal background checks for the purpose of making adverse employment decisions has received considerable attention, both at the federal and state levels. 146 Myriad reforms to address this historic reentry challenge have been proposed, 147 including classifying individuals with criminal records as a protected class under Title VII, 148 having the EEOC offer additional guidance, 149 expanding "ban the box" policies, 150 reforming FBI rap sheets used by employers screening applicants, 151 prohibiting blanket felony bans on hiring, 152 leveraging development funds to create employment opportunities for people with criminal [*250] records, 153 expanding bid incentive programs to promote local hiring priorities, 154 and creating financial incentives for private employers to create jobs for people with criminal records. 155 Additionally, less discriminatory alternatives have been suggested to replace problematic employment practices. 156

But the focus here is on amending FCRA. Some employers conduct their own criminal background checks, but statistics show that a majority of organizations completely or partially outsource background checks, 157 and this number is projected to increase within the next three years. 158 These statistics may be attributable to the fact that, although employers may rely on popular Internet search engines to perform their own criminal background checks, 159 a consumer report is comprehensive and arguably requires a smaller investment of resources. Because the companies providing criminal background check services to employers are covered under FCRA, 160 amending FCRA to prohibit the use of pre-employment criminal background checks would seemingly address this national problem. 161

Amending FCRA has been tried previously, albeit in a different context. On July 9, 2009, Representative Steve Cohen of Tennessee introduced the Equal Employment for All Act in the U.S. House of Representatives, which was [*251] referred to the House Committee on Financial Services on the same day. 162 The bill never passed the committee stage and has since been cleared from the books. 163 The purpose of the bill, which was endorsed by fifty-six Members of Congress 164 and a number of consumer and civil rights groups, 165 was "[t]o amend [FCRA] to

111 Id. at 240.

112 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

113 El v. SEPTA, 479 F.3d 232, 244-45 (3d Cir. 2007).

114 See Roberts et al., supra note 7, at 1428 ("[T]here is little or no published research reporting the relationship between having a criminal background and engaging in subsequent counterproductive behaviors on the job."); see also U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF SHAWN D. BUSHWAY (Nov. 20, 2008), http://www.eeoc.gov//eeoc/meetings/11-20-08/bushway.cfm?renderfor-print=1; STATEMENT OF ADAM T. KLEIN,supra note 51.

115 See STATEMENT OF SHAWN D. BUSHWAY, supra note 114.

116 Blumstein & Nakamura, supra note 4, at 331 (citing studies).

117 Id.

118 Id.

119 Id. at 332.

120 Id.

121 Id.

122 See El v. SEPTA, 479 F.3d 232, 247 (3d Cir. 2007).

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prohibit the use of consumer credit checks against prospective and current employees for the purposes of making adverse employment decisions" 166 in order to "give some of our most vulnerable, 'credit-challenged' citizens-- students, recent college graduates, low-income families, senior citizens and minorities--the opportunity to begin rebuilding their credit history." 167 In its proposed form, the bill read, in part:

(b) Use of Certain Consumer Report Prohibited for Employment Purposes or Adverse Action--

(1) GENERAL PROHIBITION--Except as provided in paragraph (3), a person, including a prospective employer or current employer, may not use a consumer report or investigative consumer report, or cause a consumer report or investigative consumer report to be procured, with respect to any consumer where any information contained in the report bears on the consumer's creditworthiness, credit standing, or credit capacity--

(A) for employment purposes; or

(B) for making an adverse action . . .

(3) EXCEPTIONS--Notwithstanding the prohibitions set forth in this subsection, and consistent with the other sections of this Act, an employer may use a consumer report with respect to a consumer in the following situations:

(A) When the consumer applies for, or currently holds, employment that requires national security or FDIC clearance.

(B) When the consumer applies for, or currently holds, employment with a State or local government agency which otherwise requires use of a consumer report.

(C) When the consumer applies for, or currently holds, a supervisory, managerial, professional, or executive position at a financial institution.

(D) When otherwise required by law. 168

123 Blumstein & Nakamura, supra note 4, at 331.

124 The authors recognized that the distinction between arrest information and conviction information warrants additional analysis. Id. at 345.

125 Id. at 333. The authors also noted that another point of redemption could be when the recidivism risk of an individual with a criminal record is "sufficiently close" to one without a criminal record. See id. at 333.

126 Id. at 333, 338.

127 Id. at 338-39.

128 Id. at 339. In another study exploring the issue of old prior criminal records and their ability to predict future offending, researchers discovered "that immediately after an arrest, the knowledge of this prior record does significantly differentiate [the population of former offenders] from a population of non[-]offenders. However, these differences weaken dramatically and quickly over time so that the risk of new offenses among those who last offended six or seven years ago begins to approximate (but not match) the risk of new offenses among persons with no criminal record." Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does An Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL'Y 483, 483 (2006) (emphasis added). But the question remains whether the proper comparison group is the general population or non-offenders.

129 Cf. STATEMENT OF SHAWN D. BUSHWAY, supra note 114.

130 See Roberts et al., supra note 7, at 1428.

131 Id. at 1434. The authors acknowledged the study's limitations, including that investigations of adult criminal activity may show a different correlation to counterproductive work behaviors, but noted that these patterns must be examined more closely, particularly because of the use of criminal history checks as a pre-employment screening mechanism. Id. at 1434-35, 1434 n.1.

132 Id.

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The bill, however, only sought to prohibit the use of consumer reports bearing on a consumer's creditworthiness, credit standing, or credit capacity for employment purposes.

[*252] Similar to pre-employment credit checks, 169 criminal backgrounds checks have not been shown to predict successful job performance and have a disparate impact on racial minorities. Therefore, Congress should reintroduce the Equal Employment for All Act, appropriately named, and extend the bill to include a general prohibition of the use of criminal background checks for employment purposes. As with the formerly proposed Equal Employment for All Act, exceptions to the general prohibition may have to be created. 170

Alternatively, absent congressional action, the onus should fall on the relevant administrative agencies to act. First, the EEOC should update its guidance on criminal background checks. 171 The existing EEOC guidance on arrest and conviction records is over twenty years old and in dire need of revision, particularly given the increasing reliance on criminal background checks by employers and the public availability of criminal record information through [*253] online databanks. 172 In updating its guidance, the EEOC should consider the latest statistics on the disproportionate impact these checks have on racial minorities, as well as the current literature regarding past criminal behavior having decreasing value over time and criminal history not being shown to predict counterproductive work behaviors. 173 Second, given the technical complexity of criminal background records, 174 the Federal Trade Commission should draft regulations requiring consumer-reporting agencies to provide information to employers on how to properly interpret criminal history reports. 175

V. CONCLUSION

According to Voltaire, "work keeps at bay three great evils: boredom, vice, and need." 176 The use of pre- employment background checks as a screening mechanism has brought these three evils together to effectively

133 See CRAIG WINSTON, NAT'L ASS'N PROF'L BACKGROUND SCREENERS, THE NATIONAL CRIME INFORMATION CENTER: A REVIEW AND EVALUATION 6-7 (2005), available at http://www.reentry.net/search/attachment.74268 (Though "all states report arrest and charge information, there is some variation in the reporting laws . . . [O]f the 174 million arrest cycles on file only 45% have dispositions. . . . [O]nly 31 states require updated information to be sent to the state's repository if a person is not charged after the individual has been arrested and their fingerprints have been submitted. . . . A second issue related to accuracy and content is the lack of uniformity in the criminal codes of the various states. As a general rule, the types of activities that are prohibited are consistent throughout the states. There are, however, some inconsistencies that could influence the validity of the criminal history records due to differences in classifications of behaviors."). Notably, "contrary to popular belief, there currently is no one-stop comprehensive source (i.e., an all-inclusive national database) for criminal background information." NAT'L ASS'N PROF'L BACKGROUND SCREENERS,supra note 4, at 6. The FBI and law enforcement agencies have access to a national criminal computer database, but most private sector employers cannot access this database. ADP, INSIDE CRIMINAL BACKGROUND CHECKS: SOURCES, AVAILABILITY AND QUALITY 5 (2007), available at http://www.adpselect-info.com/client/pdf/insideCriminalBackgroundChecks.pdf. Thus, employers (or consumer reporting agencies) must turn to county, state, or federal courts for criminal court records.See id. at 3. For a discussion on the principal sources of criminal records, see Jacobs & Crepet, supra note 5, at 179-87.

134 Oyama, supra note 5, at 188; see WINSTON, supra note 133, at 11. In 2008, an ABC News investigation uncovered "dozens of lawsuits, on behalf of hundreds of people, filed in the last two years, against the major criminal records database companies, alleging that background checks contain inaccurate information about criminal convictions." Scott Michels, Advocates Complain of Background Check Errors: Dozens of Lawsuits Claim Lost Jobs from Inaccurate Criminal Records, ABC NEWS (Oct. 13, 2008), http://abcnews.go.com/TheLaw/story?id=6017227&page=1.

135 Dunn & Grabchuk, supra note 5, at 328.

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136 WINSTON, supra note 133, at 11-12. "[A] 'false positive' occurs when the search indicates that the individual's name is in the [database] and therefore has a criminal record when, in fact, he or she does not. The other possible error is a 'false negative' or an indication that the individual does not have a criminal record when in fact he or she does." Id. at 11.

137 Id. at 12. 'To provide safeguards with respect to the [FBI] criminal background checks prepared for employment purposes," Representative Robert Scott of Virginia introduced the Fairness and Accuracy in Employment Background Checks Act of 2010, which was referred to the House Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security. Fairness and Accuracy in Employment Background Checks Act of 2010, H.R. 5300, 111th Cong. (2010).

138 The technical complexity of criminal background records is another basis for reassessing the value of this employment practice. See Oyama, supra note 5, at 189.

139 See D.A. Andrews & James Bonta, Rehabilitating Criminal Justice Policy and Practice, 16 PSYCHOL. PUB. POL'Y & L. 39 (2010); Stephen P. Shepard, Note, Negligent Hiring Liability: A Look At How It Affects Employers and the Rehabilitation and Reintegration of Ex-Offenders, 10 APPALACHIAN J.L. 145, 181 (2011).

140 Shepard, supra note 139, at 181.

141 Devah Pager, Double Jeopardy: Race, Crime, and Getting a Job, 2005 WIS. L. REV. 617, 619 (2005).

142 Shepard, supra note 139, at 176.

143 Id.

144 Pager, Double Jeopardy, supra note 141, at 617. The collateral consequences of a criminal record are not limited to the denial of employment opportunities. Instead, former criminal offenders are often denied access to "key social goods," including public housing, welfare benefits, student loans, and political participation. Id. at 620-21; Shepard, supra note 139, at 146-47.

145 The current "get tough" approach for dealing with criminal offenders has caused a tremendous strain on state economies, with twenty-two states cutting their corrections budgets for 2010. Andrews & Bonta, supra note 139, at 41. Only Medicaid has out-paced corrections budgets and, in 2008, it was estimated that state budgets for corrections exceeded $ 52 billion. Id. As a result, many jurisdictions have already begun returning to rehabilitation as a more effective means of managing criminal offenders. Id. at 49.

146 Some states (e.g., Hawaii, New York, Pennsylvania, Wisconsin, and Minnesota) have civil rights laws that expand on the EEOC's guidelines in protecting against discrimination based on an individual's criminal record. NAT'L LEAGUE OF CITIES INST. FOR YOUTH. EDUC. & FAMILIES & NAT'L EMP'T PROJECT, CITIES PAVE THE WAY: PROMISING REENTRY POLICIES THAT PROMOTE LOCAL HIRING OF PEOPLE WITH CRIMINAL RECORDS, STRATEGY GUIDE (2010), http://www.nelp.Org/page/-/SCLP/2010/CitiesPavetheWay.pdf?nocdn=1 [hereinafter CITIES PAVE THE WAY]. Furthermore, a number of recent lawsuits have alleged that the use of criminal background checks has a disparate impact on racial minorities.See, e.g., EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009); Johnson v. Locke, No. 10-cv-3105, 2011 WL 1044151 (S.D.N.Y. 2011); Arroyo v. Accenture LLP, No. 10-cv-03013, 2010 WL 1606504 (S.D.N.Y. 2010); Mays v. Burlington N. Santa Fe R.R. Co., No. 10-cv-00153 (N.D. Ill. 2010); Kellam v. Independence Charter Sch., 735 F. Supp. 2d 248 (E.D. Pa. 2010); Mayer v. Driver Solutions, Inc., No. 10-cv-01939, 2011 WL 1248694 (E.D. Pa. 2011); Hudson v. First Transit, Inc., No. C10-03158, 2011 WL 445683 (N.D. Cal. 2011); EEOC v. Freeman, No. 09-cv-02573, 2010 WL 1728847 (D. Md. 2010).

147 Assuming the practice of criminal background checks for employment purposes continues, commentators have offered employers a number of guidelines to avoid liability: "(1) Confirm that legally defensible explanations exist for how each offense used to screen is related to the position in question and for the length of time that is being reviewed. (2) Replace any mandatory exclusion rule with a mandatory individual review rule. This review should consider the following factors: nature and gravity of offenses, nature of job, and time passed since conviction or completion of sentence (generally do not consider offenses more than seven years from occurrence or release). Additional factors that may be helpful to consider include age at time of offense, length and consistency of work record and recent work record, and evidence of rehabilitation. (3) Delay asking for criminal history until ready to make a contingent job offer, or add a disclaimer to the application that a conviction is not an absolute bar to employment. (4) Develop some tool for ensuring that similar situations are being handled similarly. (5) Document the justification for treating similar histories differently." Kimberly J. Korando, Surviving the Reshaping of America's Workplaces: Challenges for

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Companies and Corporate Counsel, in COMPLYING WITH EMPLOYMENT REGULATIONS: LEADING LAWYERS ON UNDERSTANDING CURRENT LEGISLATION, DEVELOPING COMPLIANCE STRATEGIES, AND RESPONDING TO GOVERNMENT ENFORCEMENT 2010 (2010).

148 U.S. EQUAL EMP'T OPPORTUNITY COMM'N, STATEMENT OF B. DIANE WILLIAMS (NOV. 20, 2008), http://www.eeoc.gov/eeoc/meetings/11-20-08/williams.cfm.

149 STATEMENT OF ADAM T. KLEIN, supra note 51.

150 CITIES PAVE THE WAY, supra note 146, at 4. "The 'ban the box' policy removes the standard question that requires an applicant to disclose his or her criminal history from the city's job application. By eliminating this question, the intent is to remove the debilitating stigma associated with the inquiry that often discourages qualified candidates with criminal records from seeking . . . employment . . . Significantly, the 'ban the box' policy still requires a criminal background check for those positions where it is necessary to ensure safety and security at the workplace. It also does not alter the job application or screening process for those positions, such as in law enforcement, for which criminal background checks are required by law to protect safety or security on the job. What it does, instead, is delay the criminal background check until the final stages of the hiring process once the applicant has been selected for an interview or the city has made a conditional offer of employment." Id.

151 STATEMENT OF B. DIANE WILLIAMS, supra note 148.

152 CITIES PAVE THE WAY, supra note 146, at 3.

153 Id. at 6. "These initiatives take many forms, ranging from local hiring preference for targeted groups of city residents to 'project labor agreements' negotiated with local unions and 'community benefit agreements' negotiated with the help of community-based organizations." Id.

154 Id. at 7.

155 Id. at 8. "These incentives have taken the form of supplemental tax credits that build on the federal Work Opportunity Tax Credit (WOTC) available to employers that hire people with criminal records, and bonding programs that protect employers against certain legal liabilities." Id.

156 See, e.g., Concepción, supra note 2, at 546-48 (offering integrity tests as a potentially less discriminatory alternative).

157 According to the Society for Human Resource Management's (SHRM) Human Resource Outsourcing Report, 73% of organizations fully or partially outsource background checks. ADP, supra note 133, at 5.

158 SOC'Y FOR HUM. RES. MGMT., HUMAN RESOURCE OUTSOURCING--Is IT HERE TO STAY?, SHRM SURVEY BRIEF 1 (2008), available at http://www.shrm.org/Research/SurveyFindings/Articles/Documents/08-0894- HROutsourcingSurveyReport.pdf.

159 Criminal record information is publicly available through online databanks. See Oyama, supra note 5, at 189 n.41; see, e.g., FLA. DEP'T OF CORRS., http://www.dc.state.fl.us/AppCommon/ (last visited Jan. 25, 2012); N.Y. STATE DEP'T OF CORRS. & CMTY. SUPERVISION, http://nysdoccslookup.doccs.ny.gov/ (last visited Jan. 25, 2012).

160 See 15 U.S.C. §§ 1681(a)-(f) (2006).

161 See Watstein, supra note 5, at 608. See generally Christine Neylown O'Brien & Jonathan J. Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, 42 WAKE FOREST L. REV. 991, 1025 (2007) ("A federal statute mandating nondiscrimination for those with a criminal record would provide uniformity, simplifying matters for employers that employ across state lines."). To date, there is no federal statute prohibiting employment discrimination against former criminal offenders. Although some of the purposes of the Second Chance Act of 2007 include "to break the cycle of criminal recidivism" and "to assist offenders reentering the community from incarceration to establish a self-sustaining and law-abiding life," 42 U.S.C. § 17501(a)(1)(5) (2006), it does not have an anti- discrimination provision. See O'Brien & Darrow, supra note 161, at 1025-26.

162 Equal Employment for All Act, H.R. 3149, 111th Cong. (2009).

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prevent former criminal offenders belonging to a racial minority group from successfully reentering into society. The practice has a disparate impact on racial minorities and, given that a criminal record bears no demonstrable

163 Id.

164 Id.

165 See Press Release, Office of U.S. Congressman Luis V. Gutierrez, Reps Gutierrez & Cohen to Announce Bill to Prevent Use of Credit Scores in Hiring Process (July 28, 2009), http://www.gutierrez.house.gov/index.php?option=com_content&view=article&id=485&Itemid=52.

166 H.R. 3149 (2009).

167 Press Release, supra note 165.

168 H.R. 3149 (2009).

169 Conception, supra note 2.

170 For example, one exception to the general prohibition will have to be when the criminal offense has a direct relationship to the position in question. See, e.g., N.Y. CORRECT. LAW § 750(3), § 752(1); see also STATEMENT OF ADAM T. KLEIN, supra note 51. But the use of a consumer report under these circumstances should not be permitted if the point of redemption for the particular offense has already been achieved. To reiterate, although rational arguments may be made connecting the criminal offense with the position in question, such a connection is insufficient. Instead, the direct relationship must be shown "by professionally acceptable methods." Albemarle Paper Co. v. Moody, 422 U.S. 405, 432 (1975). Another exception may be when there is an unreasonable risk to property or to the safety or welfare of specific individuals (e.g., children, elderly, disabled) or the general public. See N.Y. CORRECT. LAW § 752(2). Lastly, a criminal background check would have to be performed when otherwise required by law. See ADP, supra note 133, at 1 ("[A]ll states require employers to complete background checks for certain jobs, which may include teaching, childcare[,] and healthcare professions that involve contact with vulnerable segments of our society."); see, e.g., N.Y. CORRECT. LAW § 751. Federal law, for example, prohibits employers from hiring those with criminal records in a variety of contexts; federal law also requires the performance of criminal background checks in a number of contexts. See, e.g., 12 U.S.C. § 1829 (2006) (preventing a person convicted of any criminal offense involving dishonesty, breach of trust, or money laundering from becoming or continuing to be employed by any insured depository institution); 18 U.S.C. § 1033(e)(2) (2006) (barring certain classes of felons from working in the insurance industry without first receiving written permission from an insurance regulatory official); 29 U.S.C. §§ 504 (2006) (preventing certain classes of felons for thirteen years after the conviction--or after the end of imprisonment, if the sentence is longer than thirteen years--from holding any of several positions in a labor organization); 42 U.S.C. § 13041 (2006) (requiring federal government agencies and facilities operated by the federal government to perform criminal history background checks on current and prospective employees providing child care services to children); 42 U.S.C. § 13726b(b)(l) (2006) (requiring that the regulations relating to the transportation of violent prisoners include "[m]inimum standards for background checks . . . for potential employees, including requiring criminal background checks, to disqualify persons with a felony conviction or domestic violence conviction . . . for eligibility for employment"); 49 U.S.C. § 44935(e)(2)(B) (2006) (requiring that individuals to be hired as security screeners undergo an employment investigation, including a criminal history record check). The applicable exceptions to the proposed amendment to FCRA, however, are beyond the scope of mis Article.

171 STATEMENT OF ADAM KLEIN, supra note 51. But see U.S. EQUAL EMP. OPPORTUNITY COMM'N, STATEMENT OF BARRY A. HARTSTEIN (July 26, 2011), http://www.eeoc.gov/eeoc/meetings/7-26-11/hartstein.cfm (stating that the current guidelines already provide the necessary flexibility, but urging that the EEOC take care in implementation of any revised guidelines that create significant additional expense to an employer's operations).

172 See supra notes 38-41, 159, and accompanying text.

173 See supra notes 42-62, 116-29, and accompanying text.

174 See supra note 138.

175 STATEMENT OF ADAM KLEIN, supra note 51.

176 VOLTAIRE, CANDIDE (1759).

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relationship to successful job performance as required by Griggs and its progeny, it cannot be considered either job-related or consistent with business necessity. Consequently, Congress should amend FCRA by including a general prohibition of the use of pre-employment criminal background checks in the Equal Employment for All Act. Whether Congress is willing to enact legislation of this sort is yet to be seen, but one thing is clear: change must come soon.

Georgetown Journal on Poverty Law & Policy Copyright (c) 2012 Georgetown Journal on Poverty Law & Policy Georgetown Journal on Poverty Law & Policy

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