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EEOC issues new Policy Guidance on the Consideration of Criminal Records in Employment Decisions

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In the United States, the mass incarceration of minority communities, and the resulting mass reentry and lifetime collateral consequences have created the "perfect storm" to ensure that criminal record based employment discrimination serves as a surrogate for race-based discrimination. Jobseekers with criminal records are often at the "back of the line", and in the current economy, that line has grown considerably. But on April 25, 2012, in a 4 to 1 bi-partisan vote, the U.S. Equal Employment Opportunity Commission (EEOC) showed tremendous leadership and courage by issuing a revised guidance encouraging the hiring of individuals with records by clarifying the application of Title VII to criminal records. This decision gives jobseekers with criminal records a renewed opportunity to successfully enter the labor market.

With 2.3 million people currently incarcerated, the United States has the distinction of leading the world in mass incarceration. There are 283,000 Hispanics in federal and state prisons and local jails, making up slightly over 15% of the incarcerated population. In addition, in recent decades, Hispanics' exposure to all parts of the criminal justice system has risen even faster than their rising share of the U.S. adult population. In state, federal and local prisons and jails, the share of incarcerated people who were Hispanic increased from 16% in 2000 to 20% in 2008. During this period, the share of Hispanics in the adult U.S. population rose from 11% to 13%.

But the by-product of mass incarceration--mass reentry--means that this year alone 700,000 people will return to their communities from prison. Millions more will cycle through our courts and jails or be placed under some other form of correctional supervision. More than half of these men and women come from and return to impoverished communities that are under resourced and ill-equipped to respond to the large number of returning citizens. Upon return to the community, these individuals are expected to find and maintain gainful employment. And, let there be no mistake, those that can work want to work. However, over the past few decades, state and local legislatures have promulgated a wide array of laws and policies that make it increasingly difficult for people with criminal records to enter the labor market successfully, even those who have fully paid their debt to society and have demonstrated that they are not a threat and are capable of becoming productive, tax-paying citizens.

Legal restrictions, occupational bars, inadvertent and deliberate employment discrimination practices, and the cultural stigma associated with having a criminal record have prevented many of these people - especially those who come from economically distressed communities of color - from obtaining employment and other necessities of life. In addition, researchers from around the country confirm that the majority of private sector employers have little or no interest in hiring people with criminal records, especially those recently released from state and federal correctional facilities. When many individuals inevitably fail to reintegrate and are re-incarcerated, they are not the only ones who suffer. So do their families, communities and indeed the entire country; valuable lives are wasted, the public is less safe, and justice is diminished. Finding effective ways to manage their reentry into society and the workforce is critical to promoting public safety and curbing recidivism rates and the high costs of re-incarceration.

The new guidance supersedes the original version issued in 1987, and reminds employers that criminal record policies have a disparate impact based on race and national origin. According to the new guidance, employers must consider the age and seriousness of the offense, and its relevance to the job the applicant is applying for. In addition, employers must also now conduct individualized assessments when screening applicants with criminal records. This new provision will offer qualified jobseekers a chance to explain their involvement with the criminal justice system, in addition to providing them an opportunity to share evidence of rehabilitation. This will help to level the playing field and offer jobseekers with criminal records a chance to compete on the merits, once their criminal record is taken into account. Surprisingly, the new guidance also encourages employers to consider recent research on "desistance," when designing their human resource policies, an especially important provision, since most employers rely on often ill-informed and misguided notions about risk and recidivism.

The Fortune Society praises the EEOC's action as a welcome step forward. The labor market has changed considerably since the EEOC last issued guidance. Changes in technology have greatly increased employer access to personal background information and more small and medium-sized employers obtain criminal background information. According to The Fortune Society's research, and its experiences working with employers to place its reentry clients, businesses want to hire individuals with records, and are looking for knowledge on how to make informed decisions on using criminal justice information. EEOC's updated guidance will provide that information, and will aid these employers by expanding the labor pool of much-needed qualified workers

The Fortune Society's (Fortune's) mission is to support successful re-entry from prison and promote alternatives to incarceration thus strengthening the fabric of our communities.