Posted August 2, 2017
A longtime resident of Dallas, Texas, Beverly Harrison is a grandmother, a retired city of Dallas employee, and a leader in her church and community.
She also happens to be one of the nearly one in three U.S. adults with a conviction or arrest record.
In 1975, when she was 19 years old, Ms. Harrison was involved in an altercation with another woman that led to a sentence of five years of probation. After completing two years of her probation without incident, a court set aside her conviction and dismissed her indictment.
Ms. Harrison has had no further convictions in the four decades since that incident. She spent 28 years as a city employee, before retiring in 2009. She started a family and rose to be a pillar in the church that her father had founded.
But in 2013, Ms. Harrison’s more than 40-year-old conviction surfaced again, even though it had been set aside decades earlier. Seeking extra income during retirement, she found a part-time position as a school crossing guard with Dallas County Schools (DCS). Her conditional job offer was revoked, however, when a background check revealed her 1975 conviction. Ms. Harrison was terminated after only eight days on the job—without a meaningful opportunity to explain the nature of her conviction or why it did not make her unsuitable for her work as a crossing guard.
Ms. Harrison’s experience is all too common, especially for people of color. Despite the fact that nearly a third of the U.S. adult population, roughly 70 million people, have some type of arrest or conviction record, people with records are often unfairly denied job opportunities, a reality that disproportionately impacts African American and Latino workers.
In order to help promote fairness in hiring and reduce discriminatory hiring practices, a growing number of employers, along with state and local governments, have instituted policies that ease hiring barriers for people with records.
“Ban the box” or “fair chance” policies are among the most effective and popular strategies employed by employers and lawmakers. These policies delay inquiries about conviction history until later in the hiring process and are often called “ban the box” policies because they eliminate from job applications any questions (often taking the form of a checkbox) that ask whether applicants have a conviction or arrest record. This approach allows employers to first judge applicants on their qualifications, without the stigma of a record. As of August, over 150 cities and counties along with 29 states and numerous private employers have adopted ban-the-box policies.
Fair chance hiring benefits all of us: strengthening our communities by helping people support themselves through work, increasing employment and sales tax revenue, and reducing government spending by keeping people out of the criminal justice system. What’s more, many employers cite the numerous benefits of expanding their applicant pools and hiring talented workers with records.
Amid this momentum, the Equal Employment Opportunity Commission (EEOC) issued guidance in 2012 explaining how Title VII of the Civil Rights Act of 1964—which prohibits employment discrimination based on race, ethnicity, and other factors—applies to employers’ consideration of conviction and arrest records in hiring. The EEOC’s nonbinding guidance, which was adopted with bipartisan support in a 4-to-1 vote, instructs employers on how best to comply with Title VII, for example, by considering the nature of a job applicant’s offense, the amount of time that passed since the offense, and its relation to the job at hand before rejecting the applicant because of his or her record.
There has long been agreement in Congress and the courts that Title VII applies not just to instances of overt discrimination, but also to those that seem neutral in theory yet have a discriminatory impact in practice. Because black and Latino Americans are arrested and convicted at much higher rates than their share of the population, the EEOC has long viewed the consideration of conviction records by employers through this lens, holding that blanket policies that screen out people with records may violate Title VII. The 2012 guidance grew out of policy statements and court decisions dating back to at least the 1970s.
Given this historical context, the bipartisan popularity of fair chance hiring policies, and the nonbinding nature of the guidance, it is dumbfounding that a state government would contest the guidance—which is exactly what Texas has done in Texas v. EEOC.
The federal lawsuit, filed in 2014 in the Northern District of Texas, asks the court to not only set aside the EEOC guidance, but also confirm that Texas has the authority, as an employer, to categorically deny individuals jobs based on a conviction.
In order to protect and expand employment opportunities for the millions of people with records in Texas and beyond, attorneys from NELP, the NAACP Legal Defense and Educational Fund, Cloutman & Cloutman, and Levy Ratner have jointly filed a motion to intervene in the case. If the court grants the motion, Beverly Harrison and the Texas State Conference of the NAACP will join the case as defendants.
For her part, Ms. Harrison hopes that her experience may help to illustrate the importance of fair chance hiring policies like those put forth in the guidance.
“I am seeking to be a part of this lawsuit because I am deeply concerned that I, and others like me, may be denied jobs in the future in Texas—if the state has its way through this case—based on similar policies to that of DCS that bar individuals like me with criminal records,” says Ms. Harrison.
“Such absolute bans are absurd given that my conviction is four decades old and I have demonstrated that I can be a valuable and dependable employee and serve my community in Texas.”
The outcome of this case could have implications that reach far beyond Texas—especially given that the current administration is unlikely to adequately defend the EEOC guidance. Ms. Harrison’s voice and the perspective of the Texas NAACP will be key to emphasizing the importance of the EEOC guidance to people with records, communities of color, as well as the country and economy as a whole.