EMPLOYMENT DISCRIMINATION ON THE BASIS OF CRIMINAL HISTORY: WHY AN ANTI-DISCRIMINATION STATUTE IS A NECESSARY REMEDY.

• Author: Westrope, Elizabeth

TABLE OF CONTENTS INTRODUCTION 368 I. CURRENT REMEDIES 371 A. Expungement Statutes 371 1. Background 371 2. Limitations on Expungement Laws in the Digital Age 373 B. Fair Credit Reporting Act 377 1. Background and Current Protections for Individuals with Criminal Records 377 2. Limitations of FCRA's protections 379 C. Title VII Litigation in the Context of Criminal Records 380 1. Background 380 2. Disparate Impact Claims 381 a. Background 381 b. 1970s-1980s 382 c. Late 1980s-Present 383 3. Mixed Motives Strategy 385 4. Title VII Protections are Insufficient 386 D. Ban the Box 386 II. PROPOSED ANTI-DISCRIMINATION STATUTE 388 A. Introduction 388 B. The EEOC's Approach to Employment Discrimination on the Basis of Criminal Records 389 C. Disqualifying Offenses 391 D. Time Limit 391 E. Negligent Hiring Concerns 392 F. Political Realities: Passing the Proposed Statute in a Conservative Political Climate 393 1. Economics 394 2. Current Political Climate 394 3. The ADA as a Model 395 CONCLUSION 396 INTRODUCTION

In 2003, a twenty-one year old man lost control of his car after a night of drinking, killing his close friend. (1) The man, "Jay," was convicted of involuntary manslaughter and sentenced to thirty-eight months in state prison. (2) Jay wrote to the U.S. Department of Justice (DOJ), detailing his struggles of re-entering society as a convicted felon. (3) Jay described the hard work he had put forth to turn his life around since his release: he had been sober for more than eight years, was succeeding in college, and had shared his story in schools, treatment facilities, and correctional institutions so that others could learn from his mistakes. (4) Yet he also told the DOJ that he had "nothing to show for it," since he was repeatedly denied job opportunities because of his felony. (5) Jay explained that he had participated in numerous interviews and sent out more than 200 resumes for positions that he was more than qualified to fill, but employers routinely denied his applications because of his criminal record. (6)

Unfortunately, Jay's story is not unique. Since 2005, approximately 700,000 persons have been released from prison annually. (7) Approximately one in three people in the U.S. has some type of criminal record. (8) Individuals with criminal records strive to fully re-integrate into the community but face tremendous obstacles. Over 38,000 statutes impose collateral consequences on individuals convicted of a crime. (10) More than half of these laws involve denial of job opportunities. (11) In addition to the economic strain that unemployment puts on individuals with criminal records, it also increases their chances of re-offending. (12)

Recidivism impacts not only the individual, but also communities. Beyond the safety concerns that are associated with re-offending, there are serious economic and social consequences that society must face as a result of denying jobs to individuals with criminal records. For example, employers may miss out on tax incentives, (13) and more unemployed individuals might rely on public assistance rather than becoming part of the tax base. (14) Additionally, refusing to hire persons with records contributes to low diversity in the workforce. (15) Racial diversity is widely recognized as important to economic success--it is "associated with increased sales revenue, more customers, greater market share, and greater relative profits"--so there are many financial incentives ensuring that employers are not discriminating against formerly incarcerated persons in their hiring processes. (16) Nevertheless, more than 60% of employers refuse to hire individuals with criminal records. (17)

This Comment pursues two goals. First, it lists out current remedies that attempt to address the problem of employment discrimination against individuals with criminal records and points out the deficiencies of these remedies. Second, it proposes a new solution to rectify this problem and improve the employment prospects of individuals with criminal records.

Part I explores four current remedies and argues that each one is unsuccessful in providing adequate relief for persons with criminal records. Section I.A begins by discussing expungement statutes and their limitations in the digital age. Section II.B describes the current protections for job applicants under the Fair Credit Reporting Act and why those protections fail to fully protect individuals from employment discrimination due to the restricted application of the Fair Credit Reporting Act. Section I.C discusses theoretical protections under Title VII but describes how those protections are often unsuccessful in reality for litigants with criminal records, particularly those who are not minorities. Section I.D examines "ban the box" provisions that currently exist in some states and explains how these provisions can actually increase racial discrimination in the hiring process for individuals with no criminal history.

Part II proposes a new solution to prevent employment discrimination against individuals with criminal records. Lawmakers must enact a statute that explicitly prohibits employment discrimination on the basis of criminal history, with limited exceptions. This statute should require employers to proactively list disqualifying offenses for every job posting and needs to prohibit employers from considering offenses committed over seven years prior to a job application.

A statute must be enacted that explicitly prohibits employment discrimination against individuals on the basis of criminal history except in certain limited instances. The proposed statute builds off the Equal Opportunity Employment Commission's (EEOC) regulation that prevents employers from disqualifying job candidates purely on the basis of criminal records. However, the proposed solution improves upon the EEOC's regulation in a few ways. First, the EEOC's guidelines only have strength within the agency's own adjudicative proceedings whereas a statute applies more broadly. Second, the suggested statute would require employers to proactively list disqualifying offenses for every job posting. This would increase transparency and prevent applicants from wasting their time and resources applying for positions from which they will later be disqualified. Third, the statute would include a time component. Employers would be barred from considering offenses that an individual had committed more than seven years ago.

This Comment concludes by addressing employers' fears that this statute would result in an increased number of negligent hiring claims and attempts to mitigate employers' concerns through statistics that show the relative rareness of re-offending on the job. Employers are also provided with ways that they can insulate themselves from potential negligent hiring claims if an individual with a criminal record were to commit a crime while working. Finally, the political realities of passing this proposed statute are discussed, including an analysis of why the bill might appeal to legislators and how legislators can use the Americans with Disabilities Act (ADA) as a model for garnering bipartisan support. I. CURRENT REMEDIES

1. EXPUNGEMENT STATUTES

   In examining expungement statutes, this Comment focuses on two points. First, it provides basic background information about such statutes. Second, it makes the argument that these statutes are insufficient in the digital era.

   1. Background

      Expungement statutes are laws that require criminal records to be destroyed or sealed. (18) In most states, expungement is a remedy that can be obtained only by petitioning the court. (19) In such states, it is within the court's discretion whether to grant the requested relief. (20) For instance, in Illinois, there is no absolute right to an expungement even when a person is statutorily eligible. (21)

      Expungement statutes were originally developed in the 1940s in the realm of juvenile criminal records. (22) The purpose of these early expungement statutes was to "lessen the stigma" on those involved in youthful crime. (23) Over time, expungement statutes have been broadened in many states and now apply to adults. (24)

      The primary purpose of modern expungement laws is to limit public access to certain criminal records in order to increase employment opportunities and housing options for individuals with criminal records, with the ultimate goal of lowering recidivism rates. (25) The central premise behind expungement laws is that if persons with criminal records are able to obtain jobs and housing, they will be more likely to become productive members of society rather than return to lives of crime. (26) In promoting this purpose, expungement statutes seek to balance the legitimate need of law enforcement to maintain public safety against the desire to afford all citizens with employment opportunities. (27)

      So-called "second-chance" criminal justice reforms currently have "growing momentum." (28) Second-chance reforms within the criminal justice context refer to efforts to ameliorate the difficulties that formerly incarcerated persons face after their release. The movement began with the passage of the Second Chance Act of 2007, which addressed many issues facing returning citizens trying to re-integrate into society. (29) While second-chance reforms can involve programs other than expungement laws, expungement is one way that states across the country address the collateral consequences impacting individuals with criminal records. In 2016 alone, Kentucky authorized the expungement of felonies for the first time in history, New Jersey reduced the waiting periods for when expungement can be sought in certain instances and enacted automatic expungement for some offenses, and Maryland allowed the expungement of misdemeanor convictions for the first time. (30)

      The question is whether or not these expungement expansions are wise. Because the positive impact of expungement statutes...