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Date: April 30, 2024 Tue
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Results for ban the box
10 results foundAuthor: National Employment Law Project Title: Ban the Box: U.S. Cities, Counties, and States Adopt Fair-Change Policies to Advance Employment Opportunities for People with Past Convictions Summary: Nationwide, 100 cities and counties have adopted what is widely known as "ban the box" so that employers consider a job candidate's qualifications first, without the stigma of a criminal record. These initiatives provide applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring. Momentum for the policy has grown exponentially, particularly in recent years. There are a total of fourteen states representing nearly every region of the country that have adopted the policies - California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Nebraska (2014), New Jersey (2014), New Mexico (2010), and Rhode Island (2013). Six states - Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island - have removed the conviction history question on job applications for private employers, which advocates embrace as the next step in the evolution of these policies. Federally, the U.S. Equal Employment Opportunity Commission (EEOC) endorsed removing the conviction question from the job application as a best practice in its 2012 guidance making clear that federal civil rights laws regulate employment decisions based on arrests and convictions. The Obama Administration's My Brother's Keeper Task Force also gave the movement a boost when it endorsed hiring practices "which give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits." Fair chance policies benefit everyone because they're good for families and the local community. At a recent event in Oakland for employers to discuss reentry issues, one business owner spoke to the personal benefit he finds from hiring people with records. "I've seen how a job makes all the difference," says Derreck B. Johnson, founder and president of Home of Chicken and Waffles in Oakland. "When I give someone a chance and he becomes my best employee, I know that I'm doing right by my community." This resource guide documents the 14 states, Washington D.C., and the 100 cities and counties -that have taken steps to remove barriers to employment for qualified workers with records. Six states, Washington D.C., and 25 cities and counties now extend the fair chance policy to government contractors or private employers. Of the localities, Baltimore, Buffalo, Chicago, Columbia (MO), Montgomery County (MD), Newark, Philadelphia, Prince George's County (MD), Rochester, San Francisco, Seattle, and Washington D.C. extend their fair chance laws to private employers in the area. A chart summarizing all the policies is at the end of this guide. Details: New York: NELP, 2016. 64p. Source: Internet Resource: Accessed April 2, 2015 at: http://www.nelp.org/page/-/SCLP/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf?nocdn=1 Year: 2016 Country: United States URL: http://www.nelp.org/page/-/SCLP/Ban-the-Box-Fair-Chance-State-and-Local-Guide.pdf?nocdn=1 Shelf Number: 135147 Keywords: Background ChecksBan the BoxCriminal ConvictionsCriminal RecordsEx-Offender Employment (U.S.) |
Author: Agan, Amanda Title: Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment Summary: "Ban-the-Box" (BTB) policies restrict employers from asking about applicants' criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant's race. To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction's adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses' applications did not ask about records even before BTB and were thus unaffected by the law. Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) - an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%. Details: Ann Arbor, MI: University of Michigan, School of Law, 2016. 69p. Source: Internet Resource: U of Michigan Law & Econ Research Paper No. 16-012 : Accessed June 28, 2016 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2795795 Year: 2016 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2795795 Shelf Number: 139526 Keywords: Ban the BoxCriminal ConvictionsCriminal RecordsEx-offender EmploymentJob DiscriminationRacial Discrimination |
Author: Emsellem, Maurice Title: Racial Profiling in Hiring: A Critique of New Summary: Two recent studies claim that "ban the box" policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record. One of the authors has boldly argued that the policy should be abandoned outright because it "does more harm than good." It's the wrong conclusion. The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color. Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as "criminals." (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records. (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans. (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process -not a repeal of ban-the-box laws. Details: New York: National Employment Law Project, 2016. 9p. Source: Internet Resource: Policy Brief: Accessed September 16, 2016 at: http://www.nelp.org/content/uploads/Policy-Brief-Racial-Profiling-in-Hiring-Critique-New-Ban-the-Box-Studies.pdf Year: 2016 Country: United States URL: http://www.nelp.org/content/uploads/Policy-Brief-Racial-Profiling-in-Hiring-Critique-New-Ban-the-Box-Studies.pdf Shelf Number: 140317 Keywords: Ban the BoxCriminal RecordsDiscriminationEx-offender EmploymentRacial Profiling |
Author: Berracasa, Colenn Title: The Impact of Ban the Box in the District of Columbia Summary: Why ODCA Did This Audit The District's Fair Criminal Record Screening Amendment Act of 20141 (FCRSA) instructed the Office of the District of Columbia Auditor to provide the D.C. Council with a report on the impact of this act on employers. What We Found This report evaluates the implementation and impact of FCRSA, more commonly known as "ban the box." The law prevents employers located within the District from asking about a job applicant's criminal record until after a conditional offer of employment is made, and the law also limits the reasons for which those employers may retract an offer of employment made to a person with a criminal record. The law is designed to "remove unfair barriers to employment" and allow "returning citizens" - people who have served time in jail or prison and who are reintegrating into society - to get a "foot in the door." This report reflects fieldwork conducted from January through late April 2016. Our research aimed to assess the implementation of the law, to evaluate its effects on hiring outcomes for returning citizens (specifically on hiring within the District government), and to evaluate its impact on private-sector employers. To investigate these questions, we used several methods: analysis of District government administrative data, a private employer survey, and interviews with a subset of private employers. We were limited to reviewing District Department of Human Resources (DCHR) hiring data for District government hires due to lack of availability of the same private-sector data on hiring outcomes for returning citizens. In examining the law's implementation to date, we found that many businesses reported being unfamiliar with the law based on our surveys and interviews. Then, looking at enforcement of the law, we found many complaints against employers filed with the District's Office of Human Rights (OHR) (over 417 within the first nine months); however, 95 addresses account for most of the complaints. Of the 417 complaints, 71 have resulted in monetary settlements and 89 were closed. The complaints data show that some employers did not follow the requirements of the law and thus appear consistent with our survey and interview finding that many employers reported being unfamiliar with the law. These two findings inform our first and second recommendations about the District government's public outreach regarding the law. Additionally, the small number of individuals submitting complaints may indicate that many returning citizens are not aware of their rights under the law; thus, our fourth recommendation suggests the District government review its processes for informing returning citizens of their rights. When analyzing the effects of the law on hiring outcomes for returning citizens, we found that District agencies did increase the share of hires of returning citizens for positions requiring a background check. However, the lack of comparable private-sector data informed our fifth recommendation that the District government conduct further research on hiring outcomes for returning citizens. Finally, in analyzing the law's effect on private employers' hiring practices, we found that the law likely does not apply to many District businesses; in fact, just 25 percent of the businesses we surveyed reporting being subject to the law's effects. Additionally, a majority of employers reported minimal impact on their hiring processes. Finally, a minority of businesses reported some impact, indicating that the law increased the cost, length and/or complexity of their hiring processes. This concern over the burden of the law resulted in our third recommendation that the District government should consider providing technical assistance or tools for private employers to share best practices for complying with the law. Overall, many District businesses interviewed support the spirit of the law. What We Recommend: 1. The Mayor and Council should direct more resources to outreach and public education to ensure that all District businesses are aware of the requirements under FCRSA. 2. The Council should consider including a requirement that implementing agencies develop a public outreach and education plan -and funding to support it - in all future pieces of legislation that make substantial changes to employment law and worker rights. 3. The Mayor should consider instructing relevant District agencies to provide technical assistance or create tools for employers to share best practices to increase compliance and minimize costs and procedural burdens. 4. The District should conduct further research on the impact that FCRSA has had on returning citizens' experiences and job outcomes. Details: Washington, DC: Office of the District of Columbia Auditor, 2016. 40p. Source: Internet Resource: Accessed September 19, 2016 at: http://www.dcauditor.org/sites/default/files/FCRSA%20-%20Ban%20the%20Box%20Report_0.pdf Year: 2016 Country: United States URL: http://www.dcauditor.org/sites/default/files/FCRSA%20-%20Ban%20the%20Box%20Report_0.pdf Shelf Number: 148135 Keywords: Background ChecksBan the BoxCriminal RecordsEx-Offender Employment |
Author: Shoag, Daniel Title: No Woman No Crime: Ban the Box, Employment, and Upskilling Summary: A sizable number of localities have in recent years limited the use of criminal background checks in hiring decisions, or "banned the box." Using LEHD Origin-Destination Employment and American Community Survey data, we show that these bans increased employment of residents in high-crime neighborhoods by as much as 4%. These increases are particularly large in the public sector. At the same time, we establish using job postings data that employers respond to ban-the-box measures by raising experience requirements. A perhaps unintended consequence of this is that women, who are less likely to be convicted of crimes, see their employment opportunities reduced. Details: Cambridge, MA: Harvard Kennedy School, 2016. 38p. Source: Internet Resource: HKS Working Paper No. 16-015: Accessed May 10, 2017 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2782599 Year: 2016 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2782599 Shelf Number: 150550 Keywords: Ban the BoxCriminal Background ChecksCriminal ConvictionsEx-Offender EmploymentEx-Offenders |
Author: Stacy, Christina Title: Ban the Box and Racial Discrimination: A Review of the Evidence and Policy Recommendations Summary: Ban-the-box policies, for which employers remove questions about criminal history from applications and delay background checks until later in the hiring process, have gained popularity in recent years. These policies are intended to give people with criminal histories the opportunity to display their qualifications in the hiring process before being assessed-and potentially rejected-based on this history. Over 150 cities and counties and 34 states and Washington, DC, have adopted ban-the-box policies (Doleac and Hansen 2016; Rodriguez and Avery 2016). Many private employers have also voluntarily adopted ban-the box-hiring policies, including Walmart, Target, the Home Depot, Bed Bath & Beyond, and Koch Industries Inc. These policies are also being applied outside the workforce context. Some universities have adopted a ban-the-box approach to school applications, and the District of Columbia's City Council recently approved a law banning the box from housing applications. Even some hospitals have voluntarily adopted ban-the-box laws (Thill, Abare, and Fox 2014). Research on ban the box has shown that it increases callback rates for people with criminal records (Agan and Starr 2016). Agan and Starr (2016) find that ban-the-box policies "effectively eliminate" the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented (Atkinson and Lockwood 2014; Berracasa et al. 2016). Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment. But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men (Agan and Starr 2016; Doleac and Hansen 2016). These findings suggest that when information about a person's criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color. These results do not necessarily mean that ban the box should be eliminated. Additional policies, regulations, and alterations can ensure that ban the box improves employment outcomes for people with criminal histories without causing negative effects on people of color. In this report, we review the evidence on job access for people with criminal records, racial discrimination in the job market and justice system, and the history of ban the box. We also propose policy additions and alterations that may help eliminate the unintended consequences of ban the box on young black and Latino men while maintaining or improving the benefits for people with criminal records. Details: Washington, DC: Urban Institute, 2017. 34p. Source: Internet Resource: Accessed May 19, 2017 at: http://www.urban.org/sites/default/files/publication/88366/ban_the_box_and_racial_discrimination_1.pdf Year: 2017 Country: United States URL: http://www.urban.org/sites/default/files/publication/88366/ban_the_box_and_racial_discrimination_1.pdf Shelf Number: 145636 Keywords: Ban the BoxCriminal ConvictionsCriminal RecordsEx-offender EmploymentJob DiscriminationRacial Discrimination |
Author: Great Britain. House of Commons. Justice Committee Title: Disclosure of youth criminal records Summary: Our predecessor Committee held an inquiry into the disclosure of youth criminal records, on which it had concluded taking evidence but had not reported by the time Parliament was dissolved before the June 2017 general election. One of our first decisions in this Parliament was that we should produce a report on this important issue, based on the evidence received by our predecessor Committee. Our report considers whether the current statutory framework for disclosing records of offences committed by people when under 18 years old is appropriate and effective, and whether it strikes the right balance between protecting employers and the public, and rehabilitating people who commit offences as children. We also consider the impact of the current regime on people who offend as young adults. Witnesses highlighted the adverse effect of childhood criminal records on individuals' access to employment, education, housing, insurance and visas for travel, and its discriminatory impact on particular groups including Black and Minority Ethnic children and those within the care system. We made direct approaches to organisations representing employers or others making use of criminal records checks for their views on the subject, but received little response from them. Overall, the inquiry evidence strongly supported the case for changing the criminal records disclosure system. For young adults, the majority of those who expressed a view thought that reform was also needed. We conclude that the current system undermines the laudable principles of the youth justice system and may well fall well short of the UK's obligations under the UN Convention on the Rights of the Child. We regret the Government's decision to pursue an appeal against the recent Court of Appeal decision on the compatibility of the filtering regime with human rights standards, rather than tackling the urgent need for reform. We also conclude that the coherence of Government policy on this area would be enhanced by consolidating responsibility into a single Department. In addition our report makes a number of recommendations for changing the statutory framework, which can be summarised as follows: - enactment of Lord Ramsbotham's Criminal Records Bill to reduce rehabilitation periods under the Rehabilitation of Offenders Act 1974 (ROA) - an urgent review of the filtering regime, to consider removing the rule preventing the filtering of multiple convictions; introducing lists of nonfilterable offences customised for particular areas of employment, together with a threshold test for disclosure that is based on disposal/sentence; and reducing qualifying periods for the filtering of childhood convictions and cautions - considering the feasibility of extending this new approach, possibly with modifications, to the disclosure of offences committed by young adults up to the age of 25 - allowing chief police officers additional discretion to withhold disclosure of non-filterable offences, taking into account the age and circumstances of the offence and the individual's age at the time with a rebuttable presumption against disclosure of offences committed during childhood - giving individuals the right to apply for a review by the Independent Monitor of police decisions to disclose convictions or cautions. The 'Ban the Box' campaign aims to delay the point at which job applicants have to disclose criminal convictions by ticking a box on application forms, allowing them to be judged primarily on merit. We recommend extending this approach to all public sector vacancies, with a view to making it a mandatory requirement for all employers. We further recommend urgent amendment to Government guidance on English housing authorities' allocation schemes to reflect the 2016 court decision that found a local authority to have breached the Rehabilitation of Offenders Act 1974 by taking into account an applicant's spent offences. In relation to insurance, we recommend that the Financial Conduct Authority consider undertaking a thematic review of providers wrongly declining cover or quoting higher premiums when customers disclose a criminal record. Details: London: House of Commons, 2017. 62p. Source: Internet Resource: First Report of Session 2017-19: Accessed November 18, 2017 at: https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/416/416.pdf Year: 2017 Country: United Kingdom URL: https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/416/416.pdf Shelf Number: 148254 Keywords: Ban the BoxCriminal RecordsEx-offender EmploymentJuvenile RecordsYouthful Offenders |
Author: Unlock for People with Convictions Title: A Question of Fairness: Research into employers asking about criminal records at application stage Summary: Unlock is being supported by the Esmee Fairbairn Foundation to run a project, Fair Access to Employment, which includes supporting employers to develop and implement fair and inclusive policies and procedures that enable the recruitment of people with convictions and that deal fairly with criminal records. Our objectives include: 1. Supporting larger employers in implementing significantly fairer and more inclusive policies and procedures, working with a range of existing employer networks such as 'Ban the Box' and the 'Employers' Forum for Reducing Reoffending' (EFFRR). Key findings We surveyed 80 large, national employers across eight sectors - supermarkets, retail, hotels, food and drink, construction, car manufacturing, utilities and communications and found that: 1. 77 out of 80 employers had online application forms. 2. Of those 77, 54 employers (70%) asked about criminal records on their application form. 3. 80% of employers who asked about criminal records provided no guidance to applicants on when a conviction becomes spent. 4. 22% of employers had phrased the question about criminal records in a way that was either potentially unlawful or misleading. 5. Collecting criminal records data at application stage is unlikely to be compliant with data protection legislation. 6. None of the employers surveyed provided information to applicants on why they collect criminal records data, or for how long it will be retained. Under the GDPR, employers who fail to provide this information are likely to be in breach of the law. 7. None of the construction companies and only half of the car manufacturers in our survey asked about criminal records at application stage. 2. Developing and maintaining a resource centre for employers and recruitment professionals. 3. Challenging employers who act unfairly and/or unlawfully, improving their practices as a result. This report sets out the findings of our research into the online application systems of 80 large, well-known national employers. Having co-founded the Ban the Box campaign in 2013, we were keen to find out how, 5 years since the campaign launched, what the current practices of some of the most recognisable businesses on the highstreet were. We looked at online application systems to see whether employers asked about criminal records, the guidance provided and whether the question was clearly and accurately worded. In addition, we considered whether asking all applicants about criminal records at application stage contravenes with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18). Details: Maidstone, Kent, UK: Unlock, 2018. 26p. Source: Internet Resource: Accessed November 3, 2018 at: http://www.unlock.org.uk/wp-content/uploads/A-question-of-fairness.pdf Year: 2018 Country: United Kingdom URL: http://www.unlock.org.uk/wp-content/uploads/A-question-of-fairness.pdf Shelf Number: 153243 Keywords: Ban the BoxCriminal Records Employment Ex-offender Employment |
Author: Love, Margaret Title: Reducing Barriers to Reintegration: Fair Chance and Expungement Reforms in 2018 Summary: Executive Summary In 2018, 30 states and the District of Columbia produced 56 separate laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and elsewhere. Many of these new laws enacted more than one type of reform. This prolific legislative "fair chance" track record, the high point of a sixyear trend, reflects the lively on-going national conversation about how best to promote rehabilitation and reintegration of people with a criminal record. As in past years, approaches to restoring rights varied widely from state to state, both with respect to the type of relief, as well as the specifics of who is eligible, how relief is delivered, and the effect of relief. Despite a growing consensus about the need for policy change to alleviate collateral consequences, little empirical research has been done to establish best practices, or what works best to promote reintegration. The most promising legislative development recognizes the key role occupational licensing plays in the process of reintegration, and it was this area that showed the greatest uniformity of approach. Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted a similar comprehensive framework to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable. The most consequential single new law was a Florida ballot initiative to restore the franchise to 1.5 million people with a felony conviction, which captured headlines across the country when it passed with nearly 65 percent of voters in favor. Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York. The largest number of new laws - 27 statutes in 19 states - expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures. A significant number of states addressed record clearing for non-conviction records (including diversions), for marijuana or other decriminalized offenses, for juveniles, and for human trafficking victims. For the first time, the disadvantages of a separate petition-based relief system were incorporated into legislative discussions. Four states established automated or systemic record-sealing mechanisms aimed at eliminating a "second chance gap" which occurs when a separate civil action must be filed. Pennsylvania's "clean slate" law is the most ambitious experiment in automation to date. Other states sought to incorporate relief directly into the criminal case, avoiding the Pennsylvania law's technological challenges. Three additional states acted to prohibit public employers from inquiring about criminal history during the initial stages of the hiring process, Washington by statute, and Michigan and Kansas by executive order. Washington extended the prohibition to private employers as well. A total of 33 states and the District of Columbia now have so-called "ban-the-box" laws, and 11 states extend the ban to private employers. Four states expanded eligibility for judicial certificates of relief. Colorado's "order of collateral relief" is now the most extensive certificate law in the nation, available for almost all crimes as early as sentencing, and effective to bar consideration of conviction in public employment and licensing. Arizona, California, and North Carolina made more modest changes to facilitate access to this judicial "forgiving" relief. The District of Columbia established a clemency board to recommend to the President applications for pardon and commutation by D.C. Code offenders. Governors in California and New York used their pardon power to spare dozens of non-citizens from deportation, and California also streamlined its pardon process and made it more transparent. Moving in the other direction, Nebraska authorized sealing of pardoned convictions, and Maine made both pardon applications and pardon grants confidential. The legal landscape at the end of 2018 suggests that states are experimenting with a more nuanced blending of philosophical approaches to dealing with the collateral consequences of arrest and conviction. These approaches include forgiving people's past crimes (through pardon or judicial dispensation), forgetting them (through record-sealing or expungement), or forgoing creating a record in the first place (through diversionary dispositions). While sealing and expungement remain the most popular forms of remedy, there seems to be both popular and institutional resistance to limiting what the public may see respecting the record of serious offenses, and a growing preference for more transparent restoration mechanisms that limit what the public may do with such a record, along with standards to guide administrative decisionmaking. Details: New York, NY: Collateral Consequences Resource Center, 2019. 51p. Source: Internet Resource: Accessed January 11, 2019 at: http://ccresourcecenter.org/wp-content/uploads/2019/01/Fair-chance-and-expungement-reforms-in-2018-CCRC-Jan-2019.pdf Year: 2019 Country: United States URL: http://ccresourcecenter.org/2019/01/10/press-release-new-report-on-2018-fair-chance-and-expungement-reforms/ Shelf Number: 154132 Keywords: Ban the BoxClean Slate LawCriminal RecordExpungementFair ChanceFelony ConvictionParoleesRecord SealingRehabilitationReintegrationRestoring RightsVoting Rights |
Author: Hartstein, Barry A. Title: Update on Criminal Background Checks: Impact of EEOC v. Freeman and Ongoing Challenges in a Continuously Changing Legal Environment Summary: The latest chapter in the ongoing saga of employment-related criminal background checks in the United States has been written, and one of the authors had some particularly strong words for the Equal Employment Opportunity Commission. On February 20, 2015, in Equal Employment Opportunity Commission v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed summary judgment in favor of the employer in a case involving a challenge to the employer's use of criminal background and credit history checks in the hiring process. The EEOC had alleged that the criminal checks had a disparate impact on African American and male applicants, and that the credit checks had a disparate impact on African American job applicants. In a unanimous decision by a three judge panel, the Fourth Circuit affirmed the lower court's decision, which stemmed from the exclusion of the EEOC's expert reports, noting the "district court found a 'mind-boggling' number of errors and unexplained discrepancies." A separate concurring opinion was written to address what one judge referred to as "disappointing litigation conduct" by the EEOC, including continued reliance on an expert whose testimony was "fatally flawed in multiple respects," who previously had been used by the EEOC despite a "record of slipshod work, faulty analysis, and statistical sleight of hand." The concurring opinion further cautioned: "The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress, as its 'significant resources, authority, and discretion' will affect all 'those outside parties they investigate or sue' - The Commission's conduct in this case suggests that its exercise of vigilance has been lacking. It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so." While the Fourth Circuit's decision in EEOC v. Freeman offers some comfort to employers, the bottom line is that this is a constantly evolving area of the law, and an employer's reliance on criminal history records in the hiring or employment process continues to present significant risk, especially for employers with high attrition for hourly workers. This is aptly illustrated by two additional large-scale lawsuits filed by the EEOC on June 11, 2013, which are being vigorously litigated and most likely will continue in litigation throughout 2015. Aside from Equal Employment Opportunity (EEO) issues, employers also continue to face additional legal hurdles based on various legislative developments at the state and even the local level (e.g., Seattle, Washington, and San Francisco, California), such as "ban the box" restrictions and related limits on the use of criminal history in hiring and employment decisions. Employers also have been battling against a massive surge in class action litigation under the Fair Credit Reporting Act (FCRA) based on gathering criminal history through third-party consumer reporting agencies when conducting background checks on applicants and/or employees. This Insight provides important takeaways for employers regarding this evolving area of the law, and to put those takeaways in context, highlights key portions of the EEOC's Criminal History Guidance; reviews in detail the Freeman case and lessons learned based on EEOC systemic charges and litigation that challenge an employer's use of criminal history in the employment process; summarizes the EEOC's additional pending litigation on the topic; and reviews another key federal appellate court decision discussing criminal history. Details: San Francisco, CA: Littler Mendelson, 2015. 10p. Source: Internet Resource: Accessed January 12, 2019 at: https://www.littler.com/update-criminal-background-checks-impact-eeoc-v-freeman-and-ongoing-challenges-continuously-changing Year: 2015 Country: United States URL: https://www.littler.com/files/press/pdf/2015_2_Insight_Update_Criminal_Background_Checks_Impact_EEOC_v_Freeman.pdf Shelf Number: 154088 Keywords: Ban the BoxCredit History ChecksCriminal Background ChecksCriminal History RecordsEmployersEmployment Background ChecksEqual Employment OpportunityEqual Employment Opportunity CommissionFair Credit Reporting ActFreeman |