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Out of Prison, Out of a Job: "Ban the Box" Movement Seeks an End to Employers' Insidious Use of Criminal Background Checks to Reject Qualified Applicants

70 million Americans - one in every three adults in the United States - has a criminal record of some sort. For many of these people, however, the cost of their crimes imposes a death sentence on their ability to find work.

The impact is far reaching. According to White House data, the U.S. incarcerates 25 percent of the world's prison population. Each year, 12 million people are either released from state and federal prisons or cycle through local jails. As they re-enter society and look for employment, however, employers turn their backs on them. African Americans and Latin Americans, who have a disproportionately high percentage of convictions and arrests, are, by far, the hardest hit. As a result, Outten & Golden is using both Title VII of the United States 1964 Civil Rights Act and state and city laws to establish that this harsh impact on minorities violates the law.

Current Laws

Employers commonly review a candidate's experience, qualifications, work history, and education in making a decision to hire or promote that individual. The federal Fair Credit Reporting Act (FCRA) and state statutes generally allow employers to require applicants to submit to a background check that can include criminal histories, driving records, and credit reports.

FCRA, however, prohibits an employer from initiating a background check without the applicant's permission and requires the employer to notify the applicant of the requirement before having them agree to the investigation. The employer must obtain signed consent to the background check in a manner that is "clear and conspicuous" and distinct from other parts of the employment application.

Additionally, no employer can reject, demote, or terminate a candidate or current employee based on a negative report without furnishing a copy of the report and providing contact information for the company that produced it. The employer must inform the candidate if a decision not to hire is based on the background check, and offer time to correct any mistakes contained in the report.

What's lacking from the process is any contemplation of whether the applicant's past wrongs have any relation or impact on the position for which they are applying.

A Breakthrough Settlement Illustrates the Alternative

Outten & Golden recently represented a class of African American and Latino job applicants seeking temporary employment from the U.S. Census Bureau, which is part of the Department of Commerce. We were able to demonstrate in our lawsuit that the Bureau relied on often inaccurate FBI criminal arrest and conviction data to screen and reject African Americans and Latin Americans, even though the records often had little if any relationship to the nature of the low-skill jobs they sought. The applicants were also not given a realistic chance to correct mistakes in their records or seek reconsideration of the Bureau's decision to reject them, which constituted a violation of our clients' civil rights.

We settled the case in April 2016, with an agreement from the Department of Commerce that it would pay $15 million into a fund to clear up, seal erroneous conviction records of the rejected applicants, and pay our attorneys' fees and costs. More important, however, the Census Bureau agreed to hire two industrial and organizational psychologists with expertise in determining employee qualifications for the temporary positions and who would properly take into account the age and relevance of any past crimes the applicants may have committed, rather than automatically rejecting hundreds of thousands of applicants.

Our work on behalf of other victims of similar employment discrimination continues, and we have joined the NAACP, the NAACP Legal Defense and Educational Fund, and the Lawyers' Committee for Civil Rights Under Law to pursue actions against the Southern Pennsylvania Transportation Authority and job search websites Monster Worldwide and ZipRecruiter Inc., as well as others believed to have violated federal, state, and local labor and civil rights laws.

While politicians haggle over sentencing guideline reform and ways to reduce our country's enormous prison population, employment is the best means for giving responsibility and accountability to those with criminal histories as they re-enter society, and providing income to support themselves and their families.

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