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Criminal Background Checks Policy Update Forces Employers To Give Fair Shot To Ex-Offenders

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Kenneth Wilson has been looking for a job for more than two and a half years. But every single job interview that he's had seems to start and end the same way.

The interviews always begin with handshakes and smiles, maybe a joke or a laugh. But once the employer begins to read through Wilson's application, everything seems to fall apart. Their body language changes, he said. You can see something change in their eyes or their manner. They get stiff, sometimes flush in the face.

"You go through the whole application, then they have that box: 'Have you been convicted of a felony or a crime?' Right there you're saying, 'Man, that blows my chances,'" said Wilson, 59, of the Bronx, N.Y.

Wilson, like an estimated 65 million Americans, has an arrest or conviction record that shows up during a routine criminal background check. As of 2010, a quarter of ex-felons were African American, according to a recent study, which is twice their percentage of the general population. More than ever employers are using a criminal record as a criteria to disqualify prospective applicants. Some 90 percent of employers conduct criminal background checks, up from 51 percent in 1996, according to the National Employment Law Project.

But this week, the Equal Employment Opportunity Commission updated its policy on criminal background checks to make it harder for employers to use such checks systematically to disqualify applicants with criminal records.

The commission, which adopted the new policy in a 4-to-1 vote on Wednesday, said that while employers have a legal right to consider someone's criminal record when making a hiring decision, "National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin."

Minorities are stopped, arrested, charged and incarcerated at a higher rate than non-minorities at every step of the criminal justice system, experts and analysts say.

According to the commission, one in three black men and one in six Hispanic men will be incarcerated at some point during their lifetime, compared to one in 17 white men.

"The Equal Employment Opportunity Commission's decision will help balance the playing field for job applicants with a criminal history," NAACP President Benjamin Todd Jealous said in a statement. "Our criminal justice system is deeply biased against people of color, and that disparity can carry over to the job search. These guidelines will discourage employers from discriminating against applicants who have paid their debt to society."

By excluding all applicants with criminal records, the commission said that employers would be violating the law if they could not demonstrate that such exclusions were "job related and consistent with business necessity." The commission called on employers to look instead at applicants' records on a case-by-case basis and to conduct an individualized assessment of an applicant's criminal record and that person's behavior since the offense occurred.

The formerly incarcerated and those who advocate on their behalf applauded the change in the policy, which has not been changed in 25 years.

"It is not ground breaking but it is certainly important for both employers and workers," said Sharon Dietrich, a managing attorney with Community Legal Services of Philadelphia. Dietrich said the new policy spells out clearly for employers through illustrative examples what might be considered violations of discrimination law.

Under the new policy, for example, if an employer performs a background check on someone who has already been hired and the employee is fired as a result, and the employee did not have any performance issues while they were employed, that could be a violation.

"I think it provides a powerful tool," said Glenn E. Martin, a vice president at the Fortune Society, a New York-based group that helps formerly incarcerated people re-enter society. "It will allow advocates to better inform people about their rights and allow them to be able to stand up for themselves with employers."

In its report, the commission cited a situation in which two applicants, one black and one white, applied for the same job at a company. Both applicants were recent graduates of the same university and had equivalent educational backgrounds, work experience and skill sets. The two applicants both shared another similarity: Both had plead guilty to marijuana distribution charges when they were in high school. When the pair were given background checks their prior criminal history was revealed. The white applicant was called back for a follow-up interview; the black applicant was not. A representative remarked to a co-worker that the company could not afford to refer "these drug dealer types," referring to the black candidate.

In that example, the agency said, a company would be in violation of discrimination law because the employer's decision was "infected by stereotyped thinking."

Bernard Adams, 33, who is currently working as a car salesman in Harrisburg, Pa., said that his criminal record has been a burden that he has had to carry from employer to employer. Adams said that he thinks prospective employers unfairly judge him because of his past, though he has had a solid work record and keeps a stack of recommendation letters from former managers at the ready.

"For me, I'm kind of used to it. It comes with the territory now, I just learn to deal with it," said Adams, who served more than a year and a half in federal prison for felony drug distribution. Adams said that while he has not gotten into any legal trouble since his release from prison nearly 10 years ago, and has performed solidly in nearly every job that he has held, his past mistakes continue to haunt him.

Adams said that in 2006 he was working for a medical billing and medical rehabilitation company through a temporary employment agency. After several months at the company, the employer wanted to bring him on full-time. But after the company completed a criminal background check and they discovered his record, they terminated him on the spot.

Adams said his manager at the time called him into her office.

"She was actually in tears when she said that she couldn't hire me because of my record," said Adams, who earlier that year was named employee of the year at the temp agency. "I had to shed a tear, too. She was just like, she knew what kind of person I was, that they had no trouble with me, I did my job. But her bosses wouldn't let her hire me."

Diana Ortiz, associate director of Exodus Transitional Community in East Harlem, said the reality of revealing a criminal past to prospective employers keeps many ex-offenders in a constant state of fear.

"They are nervous wrecks," Ortiz said. "It hinders them from being their true selves in the interviews. They know that they are sitting there being judged for that one reason, their record."

Kenneth Wilson, who served 28 years in prison for homicide, described the experience of going into a job interview with a criminal record as "fighting this losing battle, but one you have to keep fighting."

"It's a very apprehensive type of feeling," said Wilson. "You get the down feeling that I'm not going to get this job because of my record. You come out almost pleading, 'Give me a shot, give me a chance.'"

Wilson said he hopes the new guidelines for employers might relieve some of the tension often felt in those uncomfortable meetings between employers and ex-offenders, and that the new policy might incentivize employers to give good people with bad records a fair shot.

"You just can't give up," he said. "You still have to fight and fight for your rights."