NEW YORK, March 23, 2011 - More than one in four U.S. adults -- roughly 65 million people --have an arrest or conviction that shows up in a routine criminal background check, and a new report from the National Employment Law Project finds that these Americans are facing unprecedented barriers to employment. With the rapidly expanding use of background checks, employers are routinely, and often illegally, excluding all job applicants who have criminal records from consideration, no matter how minor or dated their offenses.
The new report highlights the widespread and illegal use of blanket no-hire policies by providing numerous examples of online job ads posted on Craigslist, including some by major corporations, that effectively bar significant portions of the U.S. population from work opportunities. Because of their blunt impact and extreme overreach, these blanket no-hire policies have become the subject of increasing litigation, attracting heightened scrutiny from the courts and concerned policymakers. At the same time, 92 percent of employers conduct criminal background checks, according to a 2010 Society for Human Resources Management survey.
"The fast-growing use of criminal background checks casts an extraordinarily wide net, potentially ensnaring millions of Americans who have an arrest or other record that shows up in a routine check," said Christine Owens, executive director of the National Employment Law Project. "These background checks are supposed to promote safety in the workplace, but many employers have gone way overboard, refusing to even consider highly qualified applicants just because of an old arrest or conviction. They're not even bothering to ask what the arrest or conviction was for, how far in the past it was, whether it's in any way related to the job, or what the person has done with his or her life since," said Owens.
The NELP report, entitled "65 Million ‘Need Not Apply': The Case for Reforming Criminal Background Checks for Employment," surveys online job ads posted on Craigslist in five major cities—San Francisco, Los Angeles, Chicago, New York, and Atlanta. The survey found numerous examples in which extreme requirements precluded consideration of anyone with a criminal record, in clear violation of federal civil rights law. Major companies, such as Domino's Pizza, the Omni Hotel, and Adecco USA, were just some of the employers that listed entry-level jobs on Craigslist—ranging from warehouse workers to delivery drivers to sales clerks—that unambiguously shut the door on applicants with criminal records:
"No Exceptions! . . . No Misdemeanors and/or Felonies of any type ever in background"
"*** DO NOT APPLY WITH ANY MISDEMEANORS / FELONIES ***"
"You must not have any felony or misdemeanor convictions on your record. Period."
NELP found more than 300 instances over four months last year in which staffing agencies and employers, large and small, posted over-exclusionary job ads. Based on the findings, NELP concludes that there are easily thousands of postings by employers nationwide imposing blanket policies against hiring people with criminal records.
"The consistent message across the country is that people with criminal records ‘need not apply' to jobs for which they might be the perfect fit. We hope this survey provides a wake-up call for how dire the situation has become for too many workers in today's economy and how to move forward to achieve fairer and more accurate criminal background checks for employment," said Michelle Natividad Rodriguez, an attorney with NELP and the lead author of the report.
A recent wave of federal litigation has made clear that blanket screening policies are unfair and unlawful. Under Title VII of the Civil Rights Act of 1964, discrimination in employment based on race, gender, national origin, and other protected categories is prohibited, whether intentional or not. In 1987, the Equal Employment Opportunity Commission specifically stated that barring people from employment based on their criminal records disproportionately excludes African Americans and Latinos because they are overrepresented in the criminal justice system. In contrast with the blanket screening barriers documented in the report, Title VII requires employers to take into account the specific job responsibilities and the nature of the individual's record.
Workers like Darrell Langdon have felt the impact of no-hire policies. After struggling with addiction in his youth, Mr. Langdon has been sober for more than 20 years, and, now 52, has raised two sons as a single father. Although he has moved forward, his 25-year-old felony conviction for possession of cocaine remains. After working as a boiler room fireman in the Chicago Public Schools (CPS) and then as a mortgage broker, Mr. Langdon applied to be a boiler room engineer in the schools. Despite a clean record for more than two decades and prior experience in the schools, he was rejected for the job because of his conviction. After Mr. Langdon's case garnered substantial publicity, CPS reversed its decision and hired him for the position.
"Combine today's tight job market, the upsurge in background checks and the growing number of people with criminal records, and the results are untenable. Building on the best practices being adopted in states and communities around the nation, now is the time to turn this situation around and do what's right for workers, employers, and the struggling economy. With more than one in four U.S. adults bearing a criminal record, this issue has potential public safety and economic consequences for virtually every home in America," said Ms. Rodriguez.
NELP recommends a menu of reforms to advance the employment rights of people with criminal records and promote safety and security at the workplace. Specifically, the report recommends more aggressive enforcement of the national civil rights and consumer protection laws that regulate criminal background checks for employment, a new federal sector initiative to adopt fair hiring policies that serve as a model for all employers, and leadership on the part of the employer community and Craigslist to properly balance the mutual interest of workers and employers in fairer and more accurate criminal background checks for employment.
Click here for NELP's guide to best practices for employers who conduct criminal background checks.
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