Tuesday, June 15, 2021

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

Title VII of the Civil Rights Act of 1964, as amended, 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 In Griggs v. Duke Power 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 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 According to the Court, Congress directed the thrust of the Act to the consequences of employment practices, not simply the 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 on one group than another and cannot be justified by business The 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 and are more likely to hold low-paying jobs lacking advancement opportunities. Because of the continuing presence of employment barriers (among other impediments), Blacks and Hispanics have lower household incomes, are more likely to be living in poverty, and are more likely to be living without health insurance than Whites.

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 Management, the percentage of employers conducting criminal background checks has risen from 51% in 1996 to 80% in 2003 (86% for large In 2010, the percentage rose to 92%. The extent to which criminal background checks are used may be a function of industry. 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.

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. The approximately sixty-five million American adults with criminal records are affected by this screening mechanism, 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, yet they account for 28.2% of total arrests, and 39% of prison and jail inmates. Overall, Blacks are incarcerated at a rate of six times more than that of Whites. Similarly, Hispanics constitute approximately 15.1% of the overall population, but almost 20% of the prison and jail population. Estimates suggest that Hispanics are three times more likely to be arrested than Whites. Moreover, most arrests that appear on criminal background checks are for minor crimes and non-criminal offenses. According to a 2008 analysis of eleven state courts, misdemeanors comprised 79% of the total caseload in those courts. 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. The higher numbers of arrests were for drug abuse violations (12.5%), driving under the influence (10.8%), and larceny-theft While only a fraction of these arrests result in convictions, the arrests will appear on a routine criminal background check.

The effect of these racially disparate statistics 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%. But the penalty of a criminal record is significantly more severe for Blacks than Whites. Among [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 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 Putting aside the racial disparity, research has shown that former criminal offenders rely, in part, on employment to desist from crime. 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.

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. The EEOC's E-RACE Initiative has acknowledged that facially neutral employment policies on the basis of arrest and conviction records may significantly disadvantag[e] applicants and employees on the basis of

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 Thus, absent business necessity, the EEOC holds that such a policy or practice violates Title VII. 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; (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. 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

The EEOC's position on this issue is supported by judicial authority. In the seminal case of Green v. Missouri Pacific Railroad 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. 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. The plaintiff, Buck Green, relied 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.

2. Arrest Records

As for arrest records, the EEOC has asserted that since the use of arrest 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 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 The use of arrest records, the EEOC has concluded, requires an additional inquiry. 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 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 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.

In Gregory v. Litton 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 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] 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

B. Pre-Employment Criminal Background Check 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 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 As the Court noted, because there are certain employment procedures that operate as built-in headwinds' for minority [t]he touchstone is business Four years after Griggs, the Court fleshed out this requirement in Albemarle Paper Company v. Job relatedness cannot be proved through vague and unsubstantiated 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 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

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. offered the most in-depth court analysis thus far of the legality of relying on an applicant's criminal record to make hiring decisions. The plaintiff, Douglas El, worked for a subcontractor of SEPTA as a paratransit driver to provide door-to-door and curb-to-curb transportation service for people with mental and physical Under the subcontract, SEPTA disallowed hiring anyone with, inter alia, a violent criminal conviction. 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. Based solely on this conviction, El's employer fired him. El subsequently filed suit against SEPTA on a disparate impact theory under Title VII.

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. 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 The court then distinguished Green on its facts. First, Greendid 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

The Third Circuit then proceeded by briefly discussing the relevant EEOC guidelines. 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. 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 certain offenses are serious enough to warrant a lifetime Additionally, the court determined that the guidelines were not entitled to great deference, but rather, deference in accordance with the thoroughness of its research and the persuasiveness of its Because the court found that the guidelines did not substantively analyze the statute, it did not adopt the EEOC's tripartite test. 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 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 The court expressed skepticism that SEPTA had a real basis for its policy. 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. 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.

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. 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

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. And under El, an employer's policy must accurately distinguish between applicants that pose an unacceptable level of risk and those that do 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. Instead, employers have relied on recidivism as a measure for a prospective employee's qualifications, in part because they recognize the strong positive relationship between past and future criminal offending, which has been validated by studies. 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 Stable marriage, employment, age, and time clean are powerful predictors of such desistance.

Although employers may consider past criminal behavior to be a useful sign of similar future behavior, this information has decreasing value over time. The risk of recidivism has been shown to decrease with time clean. 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. Notably, this is exactly the type of evidence that the El court stated would have been sufficient to survive summary judgment. 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. Given the importance of this issue, Dr. Alfred Blumstein and Dr. Kiminori Nakamura sought to estimate the declining hazard of rearrests 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 varies by offense types and ages at first arrest. For example, those who are arrested for robbery take about nine 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 But for burglary, those values are about five years, four years, and three years, respectively. These statistics undoubtedly add value to the discourse, yet recidivism has still not been shown to be correlated with job performance.

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. 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.

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

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. In particular, [c]ommercial criminal record databases 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 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

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 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. On the basis of poor data integrity alone, 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. To support their abandonment of rehabilitation argument, scholars have pointed to the country's high incarceration and recidivism rates. 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. Additionally, certain characteristics of employment are more effective at reducing recidivism than others. For example, research has shown that better quality jobs and higher wages reduce the likelihood of recidivism. 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.

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.

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