Where There's Smoke, There's Fire?: the Cloud of Suspicion Surrounding Former Offenders and the Eeoc's New Enforcement Guidance on Criminal Records Under Title Vii

• Publication year: 2013

Where There's Smoke, There's Fire?: The Cloud of Suspicion Surrounding Former Offenders and the EEOC's New Enforcement Guidance on Criminal Records under Title VII

Tiffany Nichols

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WHERE THERE'S SMOKE, THERE'S FIRE?: THE CLOUD OF SUSPICION SURROUNDING FORMER OFFENDERS AND THE EEOC'S NEW ENFORCEMENT GUIDANCE ON CRIMINAL RECORDS UNDER TITLE VII

Tiffany R. Nichols¹

Table of Contents

Introduction.................................................................................592

I. Back To Basics: Unpacking Disparate Impact And How The Guidance Came To Be.......................................................596

A. First Principles: Title VII and the Griggs Progeny...........596
B. The Federal Courts' Take on Criminal History................599

1. On the Heels of Change: Gregory, Green and the Golden Age....................................................................599
2. The New Era: Dimming Prospects...............................601

C. Late to the Party? The EEOC's Enforcement Guidance, Then and Now.....................................................................604

1. Sound the Alarm: Green's Call to Action.....................604
2. Rising from El's Ashes: April 2012's Enforcement Guidance 915.002........................................................606

II. Making Sense Of A Regulatory Quagmire........................611

A. Matters of Interpretation....................................................612
B. Intent to Bind or Binding Effect? Semantic Gymnastics Over Administrative Hurdles..............................................615
C. The Supreme Court and the Federal Judiciary: Charting Their Own Course?.............................................618

1. The Record on Record-Based Exclusions....................619
2. A Private Sector Political Question?...........................621

D. What the Guidance Does Not Say.....................................624

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III. Moving Forward: Can The Enforcement Guidance Withstand The Heat?...........................................................627

A. Putting Out Fires...............................................................628

1. Validation Revisited.....................................................628
2. Clarifying the Goal.......................................................630

B. When the Smoke Clears: The Opportunity for Advocacy ..634

Conclusion....................................................................................636

Introduction

Today, one in thirty-one working-age adults will have contact² with the criminal justice system.³ African-Americans and Hispanics are arrested at rates two to three times their proportion of the general population,⁴ and minority males are nearly three to six times more likely than their white counterparts to go to prison during their lifetime.⁵ What's more, inquiries into a job applicant's criminal history are increasingly universal; nearly three-quarters of

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employment applications elicit self-reporting of prior criminal behavior,⁶ and the same percentage of employers routinely conduct criminal background checks on all candidates.⁷

In light of a pointed Third Circuit decision and long-overdue recognition that the Internet and Fair Credit Reporting Act⁸ have fundamentally changed the game in terms of access to personal information, the Equal Employment Opportunity Commission (EEOC or Commission) recently voted to enact new enforcement guidance regulating employers' use of criminal history information.⁹

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Despite twenty years having passed since the EEOC last visited the subject, April 2012's Enforcement Guidance 915.002 (the Guidance) largely reiterates old themes by emphasizing the employer's burden to prove that its adverse use of criminal history is "job related" and "consistent with business necessity."¹⁰ The Guidance goes on to affirmatively assert that blanket policies against hiring former offenders are infirm—despite indication otherwise from a federal court of appeals.¹¹ And though purporting to streamline litigation, the agency's proffered pathways to avoid Title VII liability give pause to large- and small-scale employers alike: produce statistical data to "validate" employment tests or create "targeted screens" combined with an individualized assessment to ascertain the truth behind any given black mark.¹² According to the EEOC, only underlying facts or conduct—not necessarily the fact of arrest or conviction itself—are relevant for employment purposes.¹³

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The EEOC is not authorized to regulate what is merely unfair, only what is discriminatory.¹⁴ Though Title VII extended the prohibition against discrimination in new directions, it does not prohibit discrimination on the basis of criminal history per se.¹⁵ Thus, this Note considers whether the EEOC's prohibition on using an individual's criminal history as a proxy for qualification is a valid interpretation of Title VII and, if so, whether the new Guidance goes far enough to establish meaningful protections for "victim" employees, especially in light of the EEOC's limited influence outside its own adjudicative sphere.¹⁶

Part I of this Note introduces the relevant principles of Title VII disparate impact analysis, the primary focus of the new Guidance.¹⁷

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This section also explores the seminal decisions shaping the Guidance's policies and briefly analyzes its narrow "safe harbor" provision, the "duty" of Individualized Assessment (IA).¹⁸ Part II analyzes the strength of the Guidance from three distinct perspectives—legislative, administrative, and through the lens of the federal judiciary—in an attempt to shed light on the EEOC's method and intent.¹⁹ Finally, Part III proposes a solution to reconcile the Guidance with leading Title VII precedent and to foster predictability.²⁰ Former offenders may be able to find work when labor demands accelerate in a strong economy, but those individuals' rights—and employers' human resources challenges—should not become relevant concerns only in the midst of recession.²¹

I. Back To Basics: Unpacking Disparate Impact And How The Guidance Came To Be

A. First Principles: Title VII and the Griggs Progeny

Title VII of the Civil Rights Act of 1964 was a landmark piece of legislation, expanding the protections offered by the Constitution and outlawing nearly every major form of discrimination against racial, ethnic, national, and religious minorities and women in the workplace.²² The Act's principal nondiscrimination provisions, however, did not include an express prohibition on policies or

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practices that produce disproportionate harm to a particular group.²³ But in Griggs v. Duke Power Co.,²⁴ the Supreme Court found that requiring a high school diploma or the ability to pass standardized intelligence tests as conditions of employment operated to disqualify blacks at a substantially higher rate than whites.²⁵ Thus interpreting Title VII to also prohibit employers' facially neutral practices that are discriminatory in operation, the Court pronounced "[G]ood intent or absence of discriminatory intent does not redeem employment procedures . . . that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."²⁶ Instituted on the company's judgment that such tests would improve the overall quality of the work force generally, neither requirement was shown to bear any demonstrable relationship to successful performance of the jobs for which it was used—desirable "inside" positions in the operations, maintenance, and laboratory departments at a steam plant.²⁷ This lack of "business necessity," therefore, would be the "touchstone" for disparate impact liability, and employers would bear the burden to prove that any qualification or test had a "manifest relationship to the employment in question."²⁸

Several decisions post-Griggs elaborated on the disparate impact theory and business necessity, but left the elements of the plaintiff's case (and the defendant's rebuttal) uncertain.²⁹ One group of decisions was consistent with the guidelines adopted by the EEOC, imposing exacting testing and validation requirements on defendants

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in order to justify their practices.³⁰ The other group imposed less stringent requirements upon the employer than the EEOC, generally favoring a narrower interpretation of the theory.³¹ In 1989, the Supreme Court resolved these uncertainties in favor of defendants in Wards Cove Packing Co. v. Atonio, holding that a challenged practice must merely "serve[ ], in a significant way, the legitimate employment goals of the employer" and that cost saving could be a relevant consideration.³² Moreover, the Court clarified that, to the extent its precedent spoke of an employer's "burden of proof" with respect to the business necessity defense, it should have been understood only to mean "burden of production."³³ Only two years later, the Civil Rights Act of 1991 codified the prohibition on disparate impact discrimination, abrogating with force the Court's attempt to clarify the doctrine in Wards Cove.³⁴ By expressly restoring the concepts of business necessity as enunciated in Griggs and earlier precedent—including realignment of the burdens of proof and persuasion—Congress expanded the scope of Title VII "in order to provide adequate protection to victims of discrimination."³⁵ Congress further cabined the courts' worldview by naming one memorandum as the sole source of legislative history available to interpret the contours of the business necessity defense.³⁶

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B. The Federal Courts' Take on Criminal History

1. On the Heels of Change: Gregory, Green and the Golden Age

Dramatic shifts in how disparate impact plaintiffs have fared in the federal court system play a significant role in understanding the agency's revamped enforcement strategy.³⁷ In Gregory v. Litton Systems, Inc.,³⁸ a California district court was one of the earliest to apply disparate impact...