We Must Defend the Civil Rights of Workers with Conviction Records

The Trump Administration recently commenced an attack on “disparate impact” analysis, a crucial tool for defending civil rights. The doctrine is especially important to the rights of a large and often-exploited segment of the nation’s workforce: people with arrest or conviction records.

The significance of anti-discrimination law to people with records—nearly one in three U.S. adults—isn’t immediately obvious, especially to those unfamiliar with “fair chance hiring.” Yet, if we hope to defend our hard-won federal civil rights, we must promote deeper appreciation of them.

What is ‘Disparate Impact’?

Most people understand that blatantly rejecting a worker because of their race violates civil rights law. But imposing systems that needlessly exclude workers of color is also unlawful. Disparate impact liability helps to close this backdoor to unlawful discrimination.

Congress expressly added disparate impact analysis to the federal statute prohibiting employment discrimination in 1991, decades after it was recognized by the U.S. Supreme Court. The law of the land is clear: unless related to the job and necessary to the employer’s business, policies that disproportionately exclude workers of color are unlawful.

This post focuses on workers with records and race- or ethnicity-based discrimination, but disparate impact analysis also applies to other types of unlawful discrimination.

The Trump Administration cannot singlehandedly overrule congressionally created or judicially interpreted law.

Denying Opportunity to Workers with Records Has a Disparate Impact

Criminal-record screening policies are one way that employers disproportionately exclude workers of color. The legal system criminalizes and disproportionately incarcerates Black, Latinx, and Indigenous people, despite evidence of similar rates of offending across races. As a result, workers from these racial and ethnic groups are more likely to have a record and lose a job opportunity because of it.

We all want safe workplaces and prosperous communities, but unnecessarily broad background check policies and poorly tailored record-based exclusions don’t help achieve that goal. In fact, they can do the opposite.

Far from being sufficiently job-related, many background screening exclusions are based on the mere stigma of a record. While some conviction records might implicate suitability for certain jobs, no evidence supports the broad assumption that workers with records are more likely to engage in work-related misconduct or perform worse in their jobs. Those negative stereotypes about workers with records are rooted in racism—the very thing civil rights law is supposed to exclude from employer decisions.

Efforts to Increase Fair Consideration of Workers with Records

Often employers need only make simple changes to their record-related hiring policies to reduce their disparate impact and avoid civil rights violations. Notably, employers should replace blanket bans with more individualized inquiries, considering some basic factors established by case law:

1. the nature of the offense,
2. the time passed, and
3. the nature of the job.

The Equal Employment Opportunity Commission (EEOC) issued detailed guidance in 2012 that synthesizes legal precedent related to consideration of records, including the above factors. The EEOC’s only currently pending disparate impact case involves a large convenience store chain’s policy of broadly refusing to hire workers with records. Together, the guidance and enforcement action draw attention to the rights of workers with records, educating employers about their obligations.

Attacks on Disparate Impact Analysis

The Trump administration cannot singlehandedly overrule either congressionally created or judicially interpreted law. But, even without changing the law, the executive branch can take steps to undermine the rights of workers with records. Dismissing the EEOC’s pending case and refusing to pursue future enforcement actions will deny justice to many workers. Rescinding the EEOC’s 2012 guidance would remove an important educational tool.  And both may lead employers to increasingly ignore their legal responsibilities.

Going forward, it will be especially important to remind workers and employers that their rights and responsibilities have not changed. We must simultaneously spread awareness that the laws remain and prepare to defend against future attacks.