Tag Archives: discrimination ex-offenders

Criminal background checks under fire: an update

The discrimination lawsuit alleging the U.S. Census Bureau inappropriately used  arrest records for  job screening continues to heat up.  

On August 5, attorneys filed an amended complaint against the Commerce Department noting that  the EEOC had warned the Census Bureau in advance that its hiring procedures could result in “massive” racial and ethnic discrimination.  In seeking to fill more than one million temporary jobs earlier this year,  the Census Bureau subjected all applicants to an FBI records check and required that  they provide written proof of the dispositions for any arrests or convictions.

 Although people with criminal records are not specifically protected under the 1964 Civil Rights Act, using such criteria to deny employment has been found to have disparate impact on certain protected groups, and is therefore discriminatory. 

In the lawsuit, which was brought by a coalition of civil rights organizations,  attorneys allege that  African Americans, Latinos and Native Americans who applied for Census jobs were at a disadvantage, since since these ethnicities experience a disproportionate number of arrests relative to their populations in the U.S.

Ironically, under the Census Bureau’s hiring  procedures some applicants who actually worked during the 1990 Census were denied jobs this time around.  Due to the ease of background checks, this also has become a problem in private industry, as laid off individuals – many of whom have been working productively for years –  find old offenses coming back to haunt them in their job search.  

As I wrote earlier, the EEOC is working to come up with new guidelines regarding the  use of criminal records in screening.  In general, employers are barred from using blanket bans and  should be taking into account whether an offense relates to the work being done, as well as the individual’s suitability for the job.  It may be justifiable, for example, for a company to decline to hire someone convicted of theft or embezzlement as an accountant or cashier. It’s less defensible to use an arrest record as a reason not to hire someone for such a job because they were  convicted of a drug or alcohol charge, particularly if they’ve completed treatment and remained clean.

Let’s hope the EEOC comes out with something in writing soon.   Perhaps these new guidelines  might be more difficult to ignore.

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Are ex-offenders the new “untouchables”?

“I had been wrong about our criminal justice system. It’s not just another institution in our society infected by racial bias, but a different beast entirely. It functions today as a caste system. It functions to lock poor people of color in a permanent second class status for life, much like Jim Crow once did.”

Wow.

I heard this driving home from my class at the Fairfax Adult Detention Center today, and had to resist the urge to yell “yes,” to the radio.  The speaker was Michelle Alexander, a legal scholar, attorney and former Supreme Court clerk.  She was being interviewed on NPR’s Tell Me More program about her new book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

What jumped out at me was her reference to caste.  We here in America like to think of ourselves as living in the land of equal opportunity, I know.  But this particular term  is one that’s come up a lot in my discussions about the offenders and the criminal justice system, lately.  An offender turned reentry advocate I talked to a whle back put it even more bluntly:

“I think we as humans need an untouchable class.  Before it was race that held people down, now it’s that your branded and ostracized because you’re an ex-offender.”

Alexander argues that blacks are still disproportionately represented in this new lower caste, hence the link  to notorious Jim Crow laws.  She backs up her assertions with plenty of statistics, including:

  • The War on Drugs, which caused the prison explosion has been primarily waged in poor neighborhoods of color. Yes, drugs are there, she says, but they’re also in white suburban neighborhoods, as well.  But despite this, in some states 80 to 90 percent of drug offenders sent to prison are African Americans.
  • If we were to go back to the rates of incarceration we had in the 1970s, we would have to release four out of five people who are in prison today.

Author Michelle Alexander

I would agree with Alexander to a point.  Certainly more African Americans are affected by the criminal justice system.  But the caste system she’s referring to also impacts a substantial number of low income, under-educated whites.  The groups I teach in Northern Virginia have never had an African American majority.  But it’s a good bet that the most of these students, whatever their race, are usually from a lower rung on the class ladder, which guarantees them poorer legal representation and less access to some of the “breaks” often afforded higher class lawbreakers.

That said, I think Alexander and the people I’ve spoken to are right when they say that felons are the new untouchables.  As Alexander points out, offenders are:

“…trapped in a permanent second class status in which you may be denied the right to vote, automatically excluded from juries, legally discriminated against in employment, housing, access to education and public benefits. All the old forms of discrimination that we supposedly left behind…..are suddenly legal again once you’ve been branded a felon.”

Note:  Alexander and others who advocate for criminal justice reform aren’t saying that those who break the law don’t deserve to be punished.  But it’s a question of scale.  Right now having a criminal record punishes all offenders in perpetuity, often regardless of the circumstances of the individual crime.   Employers who routinely screen out anyone with a record, for example, effectively treat a felony as a scarlet letter.

Alexander thinks nothing short of a social movement will change this situation.  In ex-offender forums I often hear people talking about getting groups together and going to Washington, D.C., but so far there’s been no significant organized action.

How about you?  Do you think offenders are the new lower caste?  If so, what do you think it will take to change this?

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