Off the record: why the EEOC should change its guidelines regarding employers' consideration of employees' criminal records during the hiring process.

• Author: Carson, Emily J.

1. INTRODUCTION II. Background A. The Use of Criminal Records During the Hiring Process Has a Disparate Impact on Minority Applicants B. The EEOC's Origins and Authority Regarding Title VII C. The EEOC's Current Guidelines Regarding Employers' Use of Criminal Records During the Hiring Process. III. ANALYSIS A. The EEOC's Guidelines Lack Clarity and Deference 1. Lack of Clarity in the EEOC's Guidelines 2. Lack of Adherence to the EEOC's Guidelines Stems from a Lack of Deference B. The EEOC Recognizes that Changes Must be Made to Its Guidelines C. Problems Employers Cause When They Rely on Criminal Records Inappropriately 1. Employers Make Blanket Policies Rejecting All Applicants with a Criminal Record 2. Employers Waste EEOC Time and Resources When They Violate EEOC Guidelines D. Employers' Right to Use Criminal Records During the Hiring Process IV. RECOMMENDATION A. Make Guidelines More Explicit 1. Type of Offense 2. Time Since Last Offense 3. Timing of Inquiry B. Make Guidelines More Readily Available to Employers and Employees C. Incentives for Employers V. Conclusion I. INTRODUCTION

   The United States releases approximately 700,000 inmates from prison each year. (1) Of those released, most are young men without a college education, and about two-thirds remain unemployed one year after their release. (2) Those who can find steady work after their release are both less likely to return to prison and more capable of taking on the social roles of spouse and parent. (3) Despite the obvious advantages to society, employers are less likely to hire people with criminal records than people without criminal records. (4)

   Statistically, African American men are roughly six times more likely to go to prison than Caucasian men, and they are also overrepresented among released prisoners. (5) Thus, employers' refusal to hire individuals with criminal records creates a disparate impact on African Americans. (6) To help assuage and prevent this racially disparate impact, the Equal Employment Opportunity Commission (EEOC)--the commission Congress assigned to enforce its laws against race, sex, and religious discrimination in the workplace--should revise its guidelines to prevent employers from relying on criminal records inappropriately to exclude applicants with a criminal record.

   This Note will discuss how and why the EEOC should revise its guidelines regarding the use of criminal records during the hiring process. Part II will discuss the history of the EEOC and the EEOC's current guidelines regarding employer use of criminal records during the hiring process. Part III will discuss how and why the EEOC should change its guidelines and the different perspectives regarding what these changes should entail. Finally, Part IV lays out specific recommendations regarding how the EEOC can change its guidelines to help minimize the disparate impact against minorities (7) during the hiring process.

2. BACKGROUND

   To understand the need for a change in the EEOC's guidelines, it is important to be familiar with how the EEOC operates and how employers currently hire their employees. A discussion of how the use of criminal records during the hiring process has a disparate impact on minority applicants will highlight the need for a change in the EEOC's guidelines.

   1. The Use of Criminal Records During the Hiring Process Has a Disparate Impact on Minority Applicants

      The Civil Rights Act of 1964 (Civil Rights Act) was originally enacted to eliminate the last vestiges of Jim Crow laws (8) and segregation and deal with discrimination in voting, public accommodations, education, and employment. (9) Congress enacted Title VII of the Civil Rights Act (10) in 1964 to continue the practice of preventing employment discrimination started by "the Unemployment Relief Act of 1933, which provided '[t]hat in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed.'" (11) Title VII prohibits employers from using facially neutral selection processes--such as the use of criminal records--that have the effect of disproportionately excluding people of a certain race, color, religion, sex, or national origin, from employment opportunities. (12)

      When employers use facially neutral selection processes that have the effect of disproportionately excluding people of a certain race, color, religion, sex, or national origin from employment opportunities, affected job applicants may file a disparate impact claim. (13) In order to state a disparate impact claim under Title VII, plaintiffs must first present a prima facie case by "[identifying] the employment practice allegedly responsible for the disparities ... then [producing] statistical evidence showing that the challenged practice causes a disparate impact on the basis of race, color, religion, sex, or national origin." (14) Once the plaintiff makes a prima facie case, the burden of proof shifts to the employer who can either "directly attack [the] plaintiff's statistical proof by pointing out deficiencies in data or fallacies in the analysis" or "rebut a plaintiff's prima facie showing by demonstrating that the challenged practice is job related for the position in question and consistent with business necessity." (15) Despite Title VII's provisions regarding practices that cause a disparate impact on minority groups, several studies show that employers are extremely unlikely to hire an employee with a criminal record. (16)

      Minorities are more likely to have criminal records than non-minorities, not because they tend to commit crimes more often than non-minorities, but because of racial profiling and other factors such as prosecutorial discretion, receiving jail time rather than bail, higher bails for similar charges, less advantageous proposals during plea bargaining, longer sentences, and higher receipt of the death penalty. (17) Provided that members of both minority and non-minority races are committing crimes at the same rate, when law enforcement officers stop and search minorities at a higher rate it follows that a larger number of minorities will be prosecuted. (18) Because minorities are criminally prosecuted statistically more often than non-minorities, employers who give too much deference to criminal records during the hiring process cause a disparate impact on minorities. (19) The EEOC has held that this disparate impact violates Title VII because it discriminates against minorities. (20) Because the disparate impact results in a Title VII violation, courts have held blanket policies where employers refuse to hire anyone with a criminal record illegal. (21)

   2. The EEOC's Origins and Authority Regarding Title VII

      Title VII created the EEOC, and "Congress intended the EEOC to be 'the lead enforcement agency in the area of workplace discrimination.'" (22) Originally, Title VII "limited the EEOC's functions to the investigation of employment discrimination charges and informal methods of conciliation (23) and persuasion." (24) Thus, when the EEOC's conciliation efforts failed in the course of an investigation, its involvement in the claim ended. (25) Derrig notes that "[w]hen it originally enacted Title VII, Congress hoped to encourage employers to comply voluntarily with the Act." (26) However, when many employers did not voluntarily comply with the Act, Congress strengthened the EEOC's powers of investigation and enforcement. (27)

      Currently, "[t]he EEOC is empowered to prevent any person from engaging in any unlawful employment practice." (28) Title VII states that an employee must file a charge of discrimination with the EEOC before the employee may file a private lawsuit. (29) The employee must file the charge within 180 days after the allegedly discriminatory act occurred, and the EEOC must serve notice of the charge to the employer within ten days of filing. (30) After the employee files the charge with the EEOC and the employer has been notified, Title VII states that the EEOC is responsible for investigating the charge in "order to determine whether there is reasonable cause to believe that the statute was violated." (31) Before issuing some form of resolution, the EEOC may handle the processing of a charge in a number of ways. (32)

      In order to assess whether there is reasonable cause to believe the charge is true, the EEOC examines "whether the 'evidence establishes under the appropriate legal theory, a prima facie case, whether the employer has provided a viable defense, and whether there is evidence of pretext.'" (33) The EEOC must determine whether there is reasonable cause as soon as possible, no later than 120 days from the filing of the charge. (34) If the EEOC finds that there is reasonable cause, then it can either file a suit on behalf of an individual or decide to close its case and, upon request, issue a "Right to Sue" letter. (35) Next, the EEOC must try to eliminate any allegedly unlawful employment practice through informal methods such as conference, conciliation, and persuasion. (36) During its conciliation efforts, the EEOC must "attempt to achieve a just resolution of all violations found and to obtain agreement that the respondent will eliminate the unlawful employment practice and provide appropriate affirmative relief." (37)

      The EEOC can bring a civil action only once it has determined that it has been unsuccessful in obtaining a satisfactory conciliation agreement. (38) "If the EEOC does not bring an action within one hundred and eighty days after the claim is filed, it must then notify the aggrieved party of the failure of conciliation." (39) Next, "[t]he private civil action must be commenced within ninety days of receipt from the EEOC of a notice of right to sue." (40)

      The charging party still has the right to file a lawsuit in federal court if the EEOC does not find reasonable cause. (41) The courts have rejected the argument that the EEOC finding of no reasonable cause should create a bar to...