Ms. W, a Native American woman in Washington State, was convicted in 2008 for possession of marijuana. After applying for a job at a discount retail store and receiving a conditional offer of employment, Ms. W received a call from the manager telling her that a background check company had given her a failing evaluation, without providing the employer with any further information.
As a result of this evaluation, the employer rescinded the conditional offer of employment. When Ms. W investigated, she found out that her background check erroneously reflected a more serious offense. Although the background check company subsequently corrected Ms. W’s report, the damage had been done.
Over the last three years, the ACLU has received more than 1,030 reports from people like Ms. W stating that they have been refused or dismissed from employment because of their record of arrest or conviction. And while the Equal Employment Opportunity Commission — the agency that enforces federal civil rights laws in the workplace — has long told employers that excluding workers based on their records can violate those laws, employers haven’t gotten the message.
The EEOC’s longstanding guidelines explain that using criminal records to screen out job applicants or hire workers has a disproportionate effect on workers of color. When employers rely on criminal records alone, they can compound the racial imbalances in our criminal justice system, and replicate those inequities in the workforce. And, as in Ms. W’s case, they can deny opportunity based on errors.
But under current laws and guidelines, employers can take a worker’s criminal record into account in some circumstances, though they are supposed to consider how serious a worker’s crime was, how long ago the conviction or completion of the sentence took place and whether the crime is relevant to the job. They also have to give workers an opportunity to correct any mistakes. Still, as our intakes demonstrate, too many employers — including those employing a large number of low-wage and women workers in entry-level positions — fail to consider these factors. Instead, they use any criminal record as a blanket reason to deny someone a job.
The good news is, today the EEOC took an important step toward ensuring that people like Ms. W have a fair shot at a job, by voting to update its guidance on the ways in which employers are allowed to consider criminal records consistent with the civil rights laws. This updated guidance will help balance the civil rights of workers of color and the legitimate concerns of employers to protect safety and security at the workplace.
We welcome the EEOC’s decision to shine the spotlight on the growing problem of discrimination against workers with criminal records, and we urge the EEOC to continue to give clear direction to employers, so that a large and growing segment of America’s workforce will not continue to face discriminatory barriers to employment in the future.
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