On April 25, the Equal Employment Opportunity Commission issued a revised enforcement guidance on using criminal records in employment decisions. This groundbreaking guidance marks the first time the EEOC — the federal agency charged with interpreting and enforcing federal employment discrimination law — has said certain uses of criminal history is discrimination. Without question, this is a laudable development.
The proliferation of background checks on job applicants, coupled with the widespread public availability of arrest and conviction information, has contributed to persistent barriers to employment (and increased likelihood of recidivism) for people with criminal histories.
The new EEOC guidance is promising. It ensures that people who believe they have been arbitrarily discriminated against because of their criminal background have legal redress. They can go to any EEOC office — there is a field office in Newark — and file a complaint, and the EEOC will investigate and prosecute that complaint to the fullest extent of its authority.
Their ability to seek redress for such discrimination doesn’t depend on the laws of the state in which they live. Currently, only five states — Hawaii, Kansas, New York, Pennsylvania and Wisconsin — have employment nondiscrimination laws that explicitly protect individuals with criminal records. Just as important, the enforcement guidelines educate employers about how to maintain a workplace that complies with federal law.
This decision sends a clear message to employers that they have a duty to use employment policies that are free from arbitrary discrimination on the grounds of criminal history. The EEOC’s new guidance also is helpful in considering the continued appropriateness of certain New Jersey laws. New Jersey’s administrative code, for example, specifically authorizes the dissemination of arrest records to prospective employers — even if those arrests did not result in a conviction. The EEOC guidance reaffirms that "arrests are not proof of criminal conduct" and, moreover, since arrest records are frequently riddled with errors, those records are unreliable as a source of accurate information about an applicant.
A recent study in the journal Pediatrics found that nearly one in three young Americans will be arrested by the age of 23. If we do nothing to protect the economic viability and independence of these young people, restrictive employment policies will create a permanent underclass of the young, giving rise to depressed local economies and increasing strains on already overstretched local budgets and tax bases. The EEOC’s decision comes on the heels of momentum building here and elsewhere, calling for citywide and statewide "Ban the Box" legislation — which would prohibit employers from asking about criminal history on initial job applications. Such laws already exist in Michigan, Tennessee and Ohio, and in cities including Atlantic City. In Newark, Councilman Ronald C. Rice has proposed "Ban the Box" legislation; in hearings held in February, the city council, together with the New Jersey Institute for Social Justice, collected public input on the proposed legislation and its enforcement. In the absence of state legislative leadership on this issue, New Jersey’s municipalities should consider how "Ban the Box" legislation can serve local economic and public safety goals. In practical terms, "Ban the Box" initiatives ensure that, when people with criminal histories of arrests or convictions apply for a job, they can be confident they will be evaluated on their qualifications. "Ban the Box" offers, on the whole, more comprehensive protection than the EEOC guidelines because the EEOC’s jurisdiction is limited to employers of a certain size; small employers (fewer than 15 employees) are not subject to EEOC regulations.
According to the U.S. Department of Commerce, thousands of small employers are operating in New Jersey and, during this most recent economic downturn, businesses employing fewer than five employees have driven job growth in the state. These recent EEOC guidelines are a step in the right direction, but New Jersey and its residents have a long way yet to go. "Ban the Box" has the potential to help us get there. Taja-Nia Henderson is a professor of law at Rutgers School of Law-Newark, where she researches and writes on prisons, prisoners and ex-offenders.
May 6, 2012 The Star-Ledger By Star-Ledger Guest Columnist Taja-Nia Henderson