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  3. Statement of Michael L. Foreman, Professor, Director of Civil Rights Appellate Clinic The Pennsylvania State University Dickinson School of Law

Statement of Michael L. Foreman, Professor, Director of Civil Rights Appellate Clinic The Pennsylvania State University Dickinson School of Law

Meeting of November 20, 2008 – Employment Discrimination Faced by Individuals with Arrest and Conviction Records

I. Introduction

Thank you and good morning. I1 am pleased and honored to appear here today to address this extremely important issue – the discriminatory impact of employers using criminal records in screening job applicants. In March of this year, I had the pleasure to serve on a panel with your General Counsel, Ronald Cooper, at the ABA National Conference on Equal Employment Law.2 The issues presented there raised enough interest, and indeed enough questions, that we were asked to repeat the program via teleconference in August. This is an issue that is not going away, and is by no means easy. I applaud the EEOC for taking on the issue, revisiting a set of guidelines which were subject to criticism in El v. Septa, 3 and for taking a leadership role on an issue where we all must come together to devise a meaningful response to it.

Recent studies estimate more than 700,000 individuals annually leave the prisons of our state and federal governments and return home. That is a little over 1,900 a day. That is just over four times the number of people who made similar journeys from prison to home a short twenty years ago.

The number of those with criminal detention histories attempting to re-enter the workforce has drastically increased. Unless there is meaningful rehabilitation and concerted effort to re­integrate these individuals back into all aspects of society, there is a significant chance that those released will be back in prison within three years4. The reasons for this "revolving prison door5" are far too numerous to accurately convey in the short time allotted. Most ex-offenders, upon being released, have little money, minimal training or education, and limited job opportunities. Some have received high school equivalency diplomas or other job training education in prison, but continue to find it difficult to find employment.

Rehabilitation and re-integration through meaningful employment is one way to restrict the flow of ex-offenders leaving and re-entering society through the jailhouse doors. Data shows that those returning to society who are able to establish a stable family and working environment are less likely to return to jail. The social effects of having a job cannot be understated. A person with strong, entrenched family relations and a solid career has established ties to the community and within society, and is therefore much less likely to re-offend. Placement programs that specialize in rehabilitating ex-offenders frequently note the inverse correlation between recidivism rates and employment opportunities.

Despite this correlation, many individuals with criminal histories are unable to realize a "second chance." There is a lack of good national data on the underemployment of people with criminal records, but one study of Los Angeles employers showed that over 40% of employers will reject an applicant with a criminal record regardless of the nature of the offense or any other individual factors. This reality of rejection drives both the perception that these individuals may pose a danger to public safety, and of employer negligent hiring suits. I do not mean to summarily dismiss the concerns of employers when it comes to hiring individuals with criminal background histories. The number of tort lawsuits against employers for negligent hiring or retention appears to be increasing, and more employers are naturally wary of facing larger liability for their hiring actions, and paying their lawyers to defend against them. These concerns must however be viewed in context.

On a broad scale, addressing this problem involves a balancing of the public interest in rehabilitating and re-integrating individuals into society against possible increased risks and the potential costs of employing those with criminal histories. Serving the former interest may indeed decrease the perceived risks expressed by employers. While EEOC must be concerned with this macro-view, the Commission's view is much more focused – to eliminate unlawful discrimination based upon the enumerated classifications whether the discrimination is intended or not. It is against this mandate that EEOC must approach this issue.

Ex-convicts live with a stigma that translates into overt and implicit discrimination against them in the workplace. Granted, the difficulty that those with criminal background histories face securing steady employment after their release from prison is not the sole reason many of them re-offend. However, discrimination plays a role in keeping them on the fringes of society, and reinforcing socioeconomic hardships that drive them to re-offend.

For reasons that academics have repeatedly documented, minorities are more likely to have criminal histories, and are therefore more negatively impacted by discriminatory hiring practices that disqualify based upon criminal history. The "revolving prison door," as I mentioned earlier, is a well-established phenomenon in America. The EEOC can play a prominent role in closing this door.

II. An Overview of the Law

At this time there is no federal legislation directly addressing employment discrimination against those with criminal backgrounds.6 Employees with criminal backgrounds are not a protected class under Title VII of the Civil Rights Act of 1964. However, employees may use Title VII to demonstrate that discrimination against criminals in hiring disparately impacts a protected class. Indeed, the EEOC has applied disparate impact analysis to a myriad of employer selection procedures, and while the use of criminal history screening poses a unique set of concerns, these concerns do not foreclose its use.

Given the relevant statistical data regarding those with criminal histories, employees and applicants will likely be able to establish that the use of an applicant's criminal background results in a racially disparate impact. For example, African-Americans make up roughly 12.9% of the population, but account for 28% of the arrests, 38% of felony convictions in state court, and 38.6% of adults who have ever served time in prison.7 As these statistics show, employment practices that screen out applicants with previous criminal record will likely disproportionately exclude minority job applicants from the hiring process. Employees in most cases will likely be8 able to establish a prima facie case that the use of criminal background checks creates a disparate impact in violation of Title VII. 9

There is a dearth of case law on the use of criminal history information as an employment-screening device and little of it is recent. The most current and comprehensive analysis is El v. SEPTA. The analysis used by the Third Circuit provides, with limited clarification, the appropriate conceptual framework for analyzing the effects of using criminal backgrounds in hiring decisions.

First, the El court reiterated that the Griggs v. Duke Power disparate impact framework is appropriate and applicable. Second, the court reaffirmed the principal that a business necessity defense requires employers to tailor their criteria to measure employment related qualities accurately and directly for each applicant. The accuracy of the hiring criteria must be demonstrated by empirical evidence. Third, the court rejected the "more is better" reasoning to justify a hiring policy that is discriminatory under Title VII – that is an unverified notion that more of a quality is better will not suffice to avoid liability; rather the employer must present evidence that the challenged criteria measures the applicant's ability to perform the job, and not the applicant in the abstract. Lastly, the court did not demand that hiring policies be perfectly tailored to be provide a business necessity defense. In other words, employers need not set the bar so low that they consider an applicant with a very low probability of successful performance.

III. The Employer's Concerns Over Negligent Hiring and Retention Exposure

The threat of negligent hiring and retention suits is always a reality for employers. If an employer discovers, or should have discovered, that the job applicant has a criminal record, and that negligence results in harm to someone the employer may be liable for substantial damages. It is commonly argued that this puts the employer in a "catch-22"; the employer must either adopt a hiring policy that includes discrimination based on criminal history and risk a possible Title VII disparate impact claim, or look past criminal history at the peril of a tort claim for negligent hiring.

This supposed dilemma, I believe, both overstates and over-simplifies the issue. Further, the issuance of revised EEOC guidelines concerning the use of criminal history in hiring practices, and an employer's adherence to those guidelines may provide a safe harbor for employers. As the court in El recognized, one reason employers adopt policies which screen out those with criminal history backgrounds is an attempt to limit their exposure to the risk of tort liability. This concern does not however override the employer's obligations under Title VII. Indeed, the Supreme Court in IUAW v Johnson Controls10 rejected this exact argument when the employer argued that without their fetal protection policies they would be subject to massive liability.

The touchstones of negligence claims are foreseeability and reasonable care. A revised set of EEOC guidelines would provide employers with guidance as to what constitutes due care in hiring practices and indeed a safe harbor from negligence suits. First, if an employer was sued for negligent hiring, reliance on EEOC guidelines which include as components, considerations of foreseeablity and reasonable care should provide a defense to these claims. To paraphrase the Supreme Court's analysis addressing the employer's concern over exposure to liability in tort for harm to the employee's children in Johnson Controls, "[w]ithout negligence, it would be difficult for a court to find liability on part of the employer. If under general tort principles, Title VII bans [discriminatory policies] …and the employer has not acted negligently, the basis for holding an employer liable seems remote at best."11

IV. Recommendations

The courts are still struggling with how to address the use of criminal histories in making employment decisions. The recommendations offered below serve as a starting point for a discussion that has already begun, but that has a ways to go. The EEOC is working and should continue to work towards recognizing the disadvantaged status those with criminal histories hold in our country. I believe the following recommendations balance the interests of those with criminal background histories, with the employers' concern with tort liability, and the broader interests of public safety. We should strive to put in place guidelines, policies, and statutes that provide incentives for those with criminal background histories to rehabilitate and prepare themselves for re-entry into the job market while rewarding employers who hire them. In part, we want individuals with criminal background histories to be supported and motivated to work hard to prepare themselves for employment post-incarceration. Meanwhile, we want employers to focus their analysis of criminal histories of applicants -- realizing that each applicant is different, and that the nature of the crime, the time since it occurred, the effort of the ex-convict to rehabilitate, and the nature of the job are all significant and necessary factors to be considered in the job-hiring process. Finally, we want to start to move away from a socially flawed idea that criminal conviction histories serve as an accurate proxy for important job qualifications. Employers can articulate the actual qualities and measure them and indeed Title VII requires this.

Here are a few specific recommendations.

  1. The EEOC must release updated guidelines to remain influential in the discussion and resolution of this issue.
  2. El v Septa should be used as the template for analysis of these types of claims, with the EEOC providing guidance on appropriate prediction of risk and when that risk rises to the level that it is "job related for the position in question and consistent with business necessity."
  3. The EEOC should retain the presumption of disparate impact for investigatory purposes. Employees will rarely have the necessary evidence to prove disparate impact at the time of filing and using this as a presumption at the investigatory stage furthers EEOC's legislative mandate and is consistent with its law enforcement role.
  4. EEOC should recommend guidelines that provide appropriate time limits on disqualifications and emphasize that lifetime bans, and per se rules can rarely be justified under Title VII analysis.
  5. EEOC should consider guidance which recognizes that delaying the upfront inquiry into criminal background by postponing criminal background checks until final hiring stages meets many public policy purposes. This expands the applicant pool and improves the chances of selecting the best-qualified individuals. It also could save employers the expenses associated with doing criminal background on applicants and reduces the likelihood of discrimination based on an unrelated record. Perhaps most importantly, it encourages individuals with prior convictions to apply for positions without the fear of immediate rejection and pledges a more holistic review will take place.


1 A curriculum vitae is attached to these remarks.

2 At this conference, I presented an overview of the Title VII concerns surrounding this issue and in the interests of brevity have attached that document. Accordingly, I will keep these remarks general in nature.

3 479 F.3d 232 (2007).

4 Ed Koch, Give Some Ex-Convicts Another Chance, NEWSDAY, Aug. 17, 2001, at A49 (quoting a "report by The Urban Institute for Justice Policy Center").


6 Attempting to address this vacuum, some state and local governments have regulated how an employer may use criminal history in making employment decisions. See Jennifer Leavitt, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 Connecticut Law Review 1281 (summer 2002), for a discussion of some of these efforts.

7Bureau of Justice Statistics, Prevalence of Imprisonment in the U.S. Population, 1974-2001, available at http://

8 To establish a prima facie case, a plaintiff must show (1) that the employer's facial neutral employment practice; (2) caused a disparate impact; (3) in the treatment of a protected class.

9 There are, no doubt, unique hiring situations where this would not hold true and those of course must be addressed on a case-by-case basis.

10 499 U.S. 187 (1991).

11 499 U.S. at 208.