10/2/2011

By Lauren Pomeroy, J.D. Candidate

The U.S. Equal Employment Opportunity Commission (EEOC) is considering revising its guidelines for criminal background checks. On July 26th 2011 in Washington, DC, 250-300 people gathered to discuss the use of arrest and conviction records in employment screening and the effects that any change in policy would have on the business world. The recent action is based at least in part on a 2007 case heard by the U.S. Court of Appeals for the Third Circuit in which the court complained that the EEOC’s guidelines did not give sufficient instruction on what an employer should do with information about past criminal arrests or convictions.[1] Specifically, the guidelines do not say whether an employer can create bright-line policies as to whether some offenses are serious enough to justify a life-time hiring ban.

Current EEOC guidelines state that an absolute ban on hiring anyone with a criminal conviction is objectionable. Instead, the guidelines call for employers to make individual assessments of ex-cons, taking into account the nature and gravity of the offense, the time passed since conviction and the job itself. According to a recent survey by the Society for Human Resource Management, 92% of employers conduct criminal-background checks some of the time, and 73% do so for every position. Employers focus on the fact that people with conviction may pose work-place risks, however, that is clearly not the case for every crime. There are a number of studies that suggest that employers may engage in general discrimination against those with criminal convictions regardless of whether such discrimination is warranted.

In a survey of employers in a mid-size Midwestern city, Martinez-Ortiz concluded that while most employers agreed that ex-felons could be rehabilitated, only 30% of employers said they would consider hiring someone with a felony. A second study matched a phone survey of hiring practices with the kind of hypothetical applicant process outlined above and found that employers self-reported likelihood of hiring a felon was much higher than their hiring behavior in practice.[2]

A number of qualitative studies have documented the difficulty that individuals released from prison have in trying to find a job. But some studies have attempted to factor out any interactional style or psychological correlate of criminality by focusing simply on the presence of a criminal record. Blind studies which involved sending resumes or filling out application forms for a hypothetical applicant with a past conviction of various seriousness have shown a 10-80 percent decline in the number of positive responses compared to a similar applicant.[3] Researchers Schwartz and Skolnick further found that any interaction with the criminal justice system negatively impacted employer response even when the individual had been acquitted of the crime for which he was charged. The authors concluded that any criminal justice interaction signaled untrustworthiness to future employers.[4]

By necessity, most studies designed to directly test the effect of a criminal record have been based on hypothetical research design rather than real-world application. However, one study utilized a natural experiment in Florida to look at how labeling affects offenders in the real world. Florida judges are allowed to withhold an adjudication of guilt for individuals who have been found guilty and sentenced to probation. This study looked at 95,919 individuals who were either adjudicated a felon or had adjudication withheld. Holding all other relevant variables constant, adjudication (and the felony label) resulted in a 33% increase in the likelihood of recidivism over 2 years.[5] Although this research didn’t specifically look at how a criminal record effects employment, the strong correlation between employment and criminal activity suggests that the difference in recidivism rate may be due at least in part to employment.

The consequences of failing to reintegrate formal criminals into society are huge. An estimated 13 million Americans have some sort of felony record,[6] roughly 8% of the US adult population. Of those, about 600,000 are released every year. Returning felons are less likely to be able to find a job, less likely to be paid comparably and, by federal law, excluded from benefits such as welfare and even student loans. By reducing ex-felons opportunities in the formal, law-abiding society, we give them few options but to resume criminal activities. Researchers Visher and Linster[7] found that employed persons were 1/3 less likely to rearrested before trial while a study of sex offenders found that those with a stable employment history were 37% less likely to reoffend.[8] Repeated studies as to the effect of employment on probability of recidivism have produced such convincing results that probationers are frequently required to have a job as a condition of their probation.

What the future may bring in terms of changes to the EEOC’s guidelines is unclear. The meeting contain was some discussion of “banning the box,” that is, preventing employers from asking on employment applications whether the applicant has ever been charged or convicted of an offense.  However, that suggestion has met with severe opposition from the business community. The comment process is still open and the EEOC has not yet announced whether any changes will be forthcoming. It also remains to be seen whether any changes in the EEOC guidelines would have substantive effects in the workplace. Courts have generally held that the EEOC guidelines should only be accorded deference in accordance to the thoroughness of its research and the persuasiveness of its reasoning.[9] Under this standard, not only would EEOC’s guidelines have to change, but they would have to include sufficient reasoning to persuade a court.