Would a young Martin Luther King Jr. be able to get a job in America today? Would one of the thousands who went to jail in support of Nelson Mandela? Or the brilliant kids at the center of Occupy Wall Street? Unless we begin to enforce the Civil Rights Act, many Americans will find the doors of opportunity slammed in their faces.
Twenty-five years ago, the U.S. Equal Employment Opportunity Commission sensibly ruled under the Civil Rights Act that it is illegal for employers to disqualify job applicants based on arrest or conviction records unless the criminal record is directly relevant to the job in question. New studies show that companies routinely ignore this ruling — and the EEOC has not updated its guidelines for more than 20 years.
Now, under new Chair Jacqueline Berrien, the EEOC will meet Wednesday to consider how to enforce the law. It is vital that the commissioners reassert the force of the original ruling and give employers clear guidelines.
A recent study by the National Employment Law Project revealed that more than 90 percent of employers use criminal background checks in hiring decisions. They routinely deny someone with a record any chance to review the charges. Nonviolent youth offenders are eliminated, even though data suggest that once an early offender turns 26, many are less likely to engage in criminal activity than the general population. Even activists arrested in nonviolent protests find that their records can be used to disqualify them. Such arrests can also affect one’s credit rating, and that, too, acts as a negative.
Given the extent to which this country criminalizes behavior, this is a deeply discriminatory practice. About 65 million people in this country, according to the study, have criminal records, the vast bulk for nonviolent actions.
And, as we know, our criminal justice system is still deeply scarred by racial bias. A disproportionate number of those with criminal records come from low-income communities of color. African Americans and Latinos are more likely to be arrested than whites, more likely to be charged once arrested, and more likely to be convicted and incarcerated when charged. For minority job-seekers, as the Lawyers’ Committee for Civil Rights Under Law noted in written testimony to the EEOC in 2011, old arrests and minor convictions can turn into life sentences of joblessness.
Moreover, criminal records are notoriously inaccurate. Employers usually draw on an FBI database that relies on state records rife with mistakes that often equate arrests with convictions and too often include information about juvenile and other offenses that was supposed to have been erased.
The EEOC instructs employers to consider the age of the offense, the subsequent rehabilitation and the relevance of the offense to the particular job.
Gaggles of corporate lobbyists have pushed to delay action by the EEOC. But the EEOC has held hearings on this issue for decades. There has been bipartisan support for updating the guidance, particularly in light of the changing nature of the hiring process. Last year, the EEOC convened a meeting of diverse stakeholders and received about 300 written comments. The lobbyists, as the Wall Street Journal editorial page revealed, are trying to run out the clock, hoping the pending departure of a Democratic commissioner might “diminish considerably” the ability of the board to act.
Justice delayed is justice denied. It is time to act. The EEOC should enforce the law and give employers clear guidelines that ensure everyone has a fair shot at a job.