NELP and NAACP-LDF File Amicus Supporting EEOC Guidance on the Formerly Incarcerated

It is well understood—and well documented—that people with arrest and conviction records face significant barriers to employment. Conservative estimates indicate that approximately 70 million people, or nearly one in three adults, have a record.

At the same time, nearly 9 in 10 employers now conduct background checks on some or all job candidates. When these background checks reveal a record, the applicant’s job prospects plummet: The callback rate for white applicants drops by half and by almost two-thirds for Black candidates. Ultimately, this discrimination in hiring harms everyone: When so many people are locked out of the job market, it undermines public safety, economic security for families and communities, and the economy overall.

What’s more, in some cases, hiring policies that exclude people with records can violate Title VII of the Civil Rights Act of 1964 if they have a disproportionate impact on people of color.

That’s why guidance from the Equal Employment Opportunity Commission (EEOC)—which is currently under attack by the state of Texas—is so critical. The Guidance, issued in 2012 with bipartisan support, explains what employer policies may violate Title VII and educates employers on how best to comply with federal civil rights law when conducting employment background checks.

For example, rather than excluding all applicants with a conviction record, the guidance advises employers to individually assess the nature of the person’s offense, how much time has passed since the offense, and whether the offense is related to the job sought.

In support of the EEOC’s guidance, NELP—along with the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) and attorneys from Cloutman & Cloutman LLP and Levy Ratner PC—filed an amicus brief in the Fifth Circuit earlier this month. Beyond the legal arguments in defense of the guidance, the brief situates the case in a real-world context and explains for the court what is at stake for millions of people with records across the country.

As we stress in the brief, “justice is not served when laws are assessed blindly, without knowledge of their disparate and negative impacts, including on communities of color.”

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About the Author

Phil Hernandez

Staff Attorney, National Employment Project

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