DECEMBER 2013

U.S. COMMISSION ON CIVIL RIGHTS

BRIEFING

REPORT

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Visit us on the Web: www.usccr.gov

Assessing the Impact of

Criminal Background Checks and the

Equal Employment Opportunity

Commission’s Conviction Records Policy

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U.S. Commission on Civil Rights

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 

Congress in 1957. It is directed to:

• Investigate complaints alleging that citizens are being deprived of their right to vote by 

reason of their race, color, religion, sex, age, disability, or national origin, or by reason of 

fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal protection of 

the laws under the Constitution because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal pro-

tection of the laws because of race, color, religion, sex, age, disability, or national origin, 

or in the administration of justice. 

• Serve as a national clearinghouse for information in respect to discrimination or denial 

of equal protection of the laws because of race, color, religion, sex, age, disability, or 

national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal pro-

tection of the laws. 

Membersof the Commission

Martin Castro, Chairman

Abigail Thernstrom, Vice Chair

Roberta Achtenberg

Todd Gaziano

Gail Heriot

Peter Kirsanow

David Kladney

Michael Yaki

Marlene Sallo, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue NW, Suite 1150

Washington, DC 20425

(202) 376-8110

www.usccr.gov

This report is available from our publications office ((202) 376–8110) on disk in ASCII Text 

and Microsoft Word 2010 for persons with visual impairments. Hearing-impaired persons may dial 711 from 

any U.S. location for relay services.

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U. S. Commission on Civil Rights

Assessing the Impact of Criminal Background 

Checks and the Equal Employment Opportunity 

Commission’s Conviction Records Policy 

A Briefing

Washington, DC

December 2013

TABLE OF CONTENTS 

SUMMARY.............................................................................................................................. 1

INTRODUCTION AND BACKGROUND ............................................................................. 2

Views of Briefing Speakers.................................................................................................. 7

Recent Cases....................................................................................................................... 10

Constitutional Question ...................................................................................................... 11

Public Comments................................................................................................................ 13

Panel One Speakers............................................................................................................. 15

Carol Miaskoff................................................................................................................ 15

Don Livingston ............................................................................................................... 17

Harry Holzer ................................................................................................................... 19

Alfred Blumstein............................................................................................................. 22

Jeffrey Sedgwick............................................................................................................. 24

Panel Two Speakers............................................................................................................ 45

Roberta Meyers............................................................................................................... 45

Glenn E. Martin .............................................................................................................. 48

Lucia Bone ...................................................................................................................... 51

Julie Payne ...................................................................................................................... 54

Richard Larson................................................................................................................ 56

Garen Dodge ................................................................................................................... 58

Panel Three Speakers.......................................................................................................... 75

Montserrat Miller............................................................................................................ 75

Nick Fishman.................................................................................................................. 78

Todd Mccracken ............................................................................................................. 81

Jonathan Segal ................................................................................................................ 83

Richard Mellor................................................................................................................ 86

William Dombi ............................................................................................................... 88

Alfred Blumstein............................................................................................................... 109

Lucia Bone........................................................................................................................ 123

Garen E. Dodge................................................................................................................. 126

William A. Dombi ............................................................................................................ 162

Nick Fishman.................................................................................................................... 169

Harry J. Holzer.................................................................................................................. 173

Richard S. Larson ............................................................................................................. 179

Donald R. Livingston........................................................................................................ 183

Surveys and Research Provided by Speakers ..................................................................... 11

SPEAKERS’ WRITTEN STATEMENTS ........................................................................... 109 

BRIEFING SPEAKERS’ REMARKS TO COMMISSION ................................................... 14 
Glenn E. Martin ................................................................................................................ 194

Todd McCracken .............................................................................................................. 204

Richard T. Mellor ............................................................................................................. 210

Roberta Meyers................................................................................................................. 216

Carol R. Miaskoff ............................................................................................................. 220

Montserrat Miller.............................................................................................................. 232

Julie T. Payne................................................................................................................... 239

Jeffrey Leigh Sedgwick .................................................................................................... 250

Jonathan A. Segal ............................................................................................................. 265

SPEAKERS’ BIOGRAPHIES.............................................................................................. 271

Alfred Blumstein............................................................................................................... 271

Lucia Bone........................................................................................................................ 272

Garen E. Dodge................................................................................................................. 272

William A. Dombi ............................................................................................................ 273

Nick Fishman.................................................................................................................... 274

Harry J. Holzer.................................................................................................................. 275

Richard S. Larson ............................................................................................................. 275

Donald R. Livingston........................................................................................................ 276

Glenn E. Martin ................................................................................................................ 277

Todd McCracken .............................................................................................................. 280

Richard T. Mellor ............................................................................................................. 281

Roberta Meyers................................................................................................................. 281

Carol R. Miaskoff ............................................................................................................. 282

Montserrat Miller.............................................................................................................. 282

Julie Payne ........................................................................................................................ 283

Jeffrey L. Sedgwick .......................................................................................................... 283

Jonathan A. Segal ............................................................................................................. 284

COMMISSIONERS’ STATEMENTS ................................................................................. 286

Statement of Chairman Martin R. Castro ......................................................................... 286

Statement of Commissioner Peter N. Kirsanow, Joined by Vice Chair Thernstrom and 

Commissioner Gaziano..................................................................................................... 289

Statement and Rebuttal of Commissioner Gail Heriot ..................................................... 308

Statement of Commissioners David Kladney and Roberta Achtenberg........................... 341
1 Summary

Assessing the Impact of Criminal Background Checks and the Equal

Employment Opportunity Commission’s Conviction Records Policy

SUMMARY

On December 7, 2012 the United States Commission on Civil Rights held a briefing to

examine the disparate impact provisions of the Equal Employment Opportunity

Commission’s (EEOC) April 2012 guidance concerning the use of criminal background

histories (2012 Guidance or “new guidance”).1

 The Commission wished to learn about the

effects of the EEOC’s revised policy on employers and on black and Hispanic applicants

with or without a criminal record.

The briefing’s seventeen speakers included a high-ranking EEOC official, scholars,

attorneys, social scientists, personnel executives, a former offender now policy director of an

advocacy and job placement service, a family member of a victim slain by an unscreened exconvict sent to the victim’s home as a contractor six months earlier, ex-felon advocacy

groups, business associations representing home care, small business and retail, and a

security company currently under investigation by the EEOC.

The speakers gave views on the effects of the 2012 Guidance, its legal complexities, the

sufficiency of its evidentiary basis, and on whether the 2012 Guidance would result in a

negative disparate impact on the very groups the agency intends to protect. Former-offender

advocacy groups welcomed the 2012 Guidance for its virtual prohibition on blanket

exclusionary policies and its strongly suggested consideration of applicants and employees

with criminal records of many kinds on a narrowly drawn or case-by-case basis. These

records included arrest records only, criminal citations, misdemeanor convictions,

expungements, and felony convictions, among others.2

1

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF

ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF

1964 [hereinafter 2012 Guidance or new guidance], available at

 Speakers representing employers

discussed whether the majority of employers, who for legal, statutory mandate, business

and/or safety reasons must exclude applicants with particular criminal convictions, might as a

result reduce hiring overall, increase automation, or move some jobs overseas. Some thought

that such reduction in hiring of entry-level workers would likely have the unfortunate effect

of disproportionately lowering job opportunities and reducing employment among blacks and

Hispanics.

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. 2

 Hereinafter termed “ex-offender” or “former offender” for convenience, even though some may only have had

a non-felony, non-conviction brush with the law.
2 Introduction and Background

INTRODUCTION AND BACKGROUND

Disparate impact theory posits that any use of a selection method that is facially nondiscriminatory may still be held discriminatory if it affects proportionally more of one 

protected group than of another, and the selecting entity, in this case an employer, cannot 

show that the selection criteria are job-related and consistent with business necessity. 

Disparate impact theory is invoked by plaintiffs in private discrimination suits and by various

enforcement agencies. In addition to the EEOC, examples of such enforcement agencies are 

the U.S. Department of Justice’s Civil Rights Division, the U.S. Department of Housing and 

Urban Development, the Consumer Financial Protection Bureau, and the U.S. Department of 

Education, among others.

The EEOC’s mission is enforcement of anti-discrimination and other federal equal 

employment opportunity laws as authorized under Title VII of the Civil Rights Act of 1964 

(the Act).

3 Since the statute does not authorize the agency to issue regulations on this subject, 

the agency makes known its interpretation of the statute by issuing guidance and policy 

statements. Employers excluded by statute from its jurisdiction are those with fewer than 15 

employees and American Indian tribes.

4 The U.S. Department of Justice litigates Title VII 

against States and municipalities.

The Civil Rights Act as passed in 1964 did not address disparate impact, although the 

Supreme Court accepted disparate impact theory with regard to intelligence tests and high 

school graduation requirements in the 1971 case Griggs v. Duke Power Company.

5 Twentyfive years after the Act’s passage, Congress amended the Act’s Title VII to include disparate 

impact discrimination as a statutory basis for suits against employers as part of the Civil 

Rights Act of 19916 after a series of Supreme Court decisions that weakened the reach of 

disparate impact theory.

7 The amended law did not address criminal histories, and the 

EEOC’s 2012 Guidance acknowledges that “having a criminal record is not listed as a 

protected basis in Title VII.”8 Since at least 1972,

9 however, the EEOC has asserted that 

disparate impact theory drawn from the Griggs10

 3 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 265 (codified as amended at 42 U.S.C. § 2000e et seq.

(2013)).

decision forbids the blanket exclusion by an 

employer of all applicants with criminal histories. The EEOC does not prohibit or restrict 

employers from asking for or obtaining background histories, although eliminating the 

4 The EEOC has jurisdiction over federal employment, but may not challenge federal statutes concerning 

consideration of criminal background histories, See 42 U.S.C. § 2000e-16(a) (prohibiting discriminatory 

employment practices by federal departments and agencies). 5 Griggs v. Duke Power Co., 401 U.S. 424 (1971). 6 42 U.S.C. 2000e-2(k) (disparate impact). 7 For an account of the cases and legislative history, see Peter M. Leibold, Stephen A. Sola & Reginald E. 

Jones, Civil Rights Act of 1991: Race to the Finish—Civil Rights, Quotas, and Disparate Impact in 1991, 45 

Rutgers L. Rev. 1043 (1993).

8 2012 Guidance at 6.

9 2012 Guidance at 3, n.15. 10 Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Criminal Background Checks and the EEOC’s Conviction Records Policy 3

question from the face of an application is identified as a “best practice”11 and some

members of the public who submitted comments appear to believe that it is still considering

the elimination of the question. Many of the public comments sent to the EEOC concerning

its new guidance mistakenly objected to the perceived restriction or prohibition against

obtaining background checks.12

To pursue a claim under Title VII in federal or state court, an aggrieved applicant or

employee must first file a charge with EEOC or with a state or local fair employment

practices agency authorized to accept charges on the EEOC's behalf. If the EEOC

investigates and does not find reasonable cause to believe that discrimination occurred, it will

automatically send the charging party a "Notice of Right to Sue," after which the charging

party will have 90 days to file a lawsuit.13

If EEOC investigates and finds reasonable cause to believe that discrimination occurred, the

agency will attempt to resolve the charge informally through conciliation. If the attempt to

conciliate the charge is unsuccessful, the EEOC will decide whether to file suit. If EEOC

decides not to file suit, it will send the charging party a Notice of Right to Sue, and the same

90-day suit-filing period will apply. Once a Notice of Right to Sue has been issued, the

agency usually takes no further action on the charge. If EEOC does file suit, the charging

party may intervene in that lawsuit but generally may not sue separately.14 In any lawsuit the

EEOC’s policies and guidance statements remain important but not necessarily dispositive

considerations for a court in deciding the outcome.

The EEOC’s 2012 Guidance is the most recent policy statement conscribing employee

selection. It supersedes all earlier criminal history policies.15 Because the 2012 Guidance is

so recent, Commission briefing speakers based their comments on its expected effects, in

addition to the EEOC’s enforcement policy and actions under prior guidances issued in 1987

and 1990.16

Still in force are the 1978 Uniform Guidelines on Employee Selection Procedures (1978

Selection Guidelines) on allowable methods of selection. The 1978 Selection Guidelines,

11 2012 Guidance at 13. 12 At our request, the EEOC graciously supplied the nearly 300 public comments it received with personal

information redacted. 13 The charging party has the right to receive, if requested, a "Notice of Right to Sue" once 180 days have

passed from the day he filed the charge regardless of whether the agency has yet investigated the charge. 14 Procedural description provided by the EEOC to the U.S. Commission on Civil Rights at our request. 15 This includes the 1987 and 1990 policies on criminal histories and arrest histories, respectively. See 2012

Guidance at 3. 16 EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e et seq. (1982) (2/4/87) available at

http://www.eeoc.gov/policy/docs/convict1.html; EEOC Policy Statement on the Use of Statistics in Charges

Involving the Exclusion of Individuals with Conviction Records from Employment, U.S. Equal Emp’t

Opportunity Comm’n (July 29, 1987) at http://www.eeoc.gov/policy/docs/convict2.html; Policy Guidance on

the Consideration of Arrest Records in Employment Decisions Under Title VII, U.S. Equal Emp’t Opportunity

Comm’n (Sept. 7, 1990) at http://www.eeoc.gov/policy/docs/arrest_records.html.
4 Introduction and Background

issued 35 years ago and not updated since, are in use by various federal agencies.17 Critics of

the 1978 Selection Guidelines allege that accepted standards incorporating advances in

validity generalization are not available to employers under these guidelines.18 Validity

generalization would allow employers to develop employee qualification standards that

would be applicable to a class of jobs, not just one job. Although the 2012 Guidance

acknowledges as a legitimate selection concern the physical or other security risks to

customers or other employees inherent in hiring any employee,19 it leaves employers exposed

to the discretionary judgment of the EEOC as to individual hiring decisions.

Among those policies apparently superseded20 is the 1987 policy distinguishing between

crime-specific and non-crime-specific data to control employers’ use of statistical data in

excluding former offenders (1987 Statistics Policy).21 This policy allowed employers where

the policy was crime-specific to present data showing that their practices would not adversely

affect blacks and Hispanics in the employer’s actual pool as to that particular crime; the new

guidance also allows employers to make this showing.22 Also superseded is the 1990 policy

guidance restricting employers’ use of arrest records (1990 Arrest Records Policy);23 the

policy limiting but not eliminating use of arrest records is now included in the new guidance.

The Title VII statute does not distinguish between intentional and inadvertent actions,

meaning that an employer may make good-faith efforts to adhere to the guidance and still be

in violation of the law. The EEOC has the authority to bring a systemic investigation against

several employers alleging a pattern or practice of discrimination and add additional affected

employees and/or bases such as national origin.24

Some years ago, the EEOC began an initiative called “E-RACE” that adds greater scrutiny to

employer practices such as making hiring selections based on “names, arrest and conviction

records, employment and personality tests, and credit scores.”25 The 2012 Guidance does not

discuss the relation of E-RACE to the Guidance.

17 Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. pt. 1607 (1978). 18 See 2012 Guidance at 15 (“Although there may be social science studies that assess whether convictions are

linked to future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for

validating some employment exclusions, such studies are rare at the time of this drafting.”); see, e.g., Posting of

DCI Consulting Group “Abolish the Uniform Guidelines” to http://ofccp.blogspot.com/2011/04/dci-staffpresent-at-siops-26th-annual.html (Apr. 26, 2011, 02:43 EST). 19 For example, the 2012 Guidance at 6 states merely: “Employers have reported” that they use criminal

background information to “combat theft and fraud... workplace violence...and negligent hiring.” 20 2012 Guidance at 3, n.15. 21 EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with

Conviction Records from Employment (7/29/87) available at http://www.eeoc.gov/policy/docs/convict2.html. 22 2012 Guidance at 10. 23 Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982) available at

http://www.eeoc.gov/policy/docs/arrest_records.html. 24 As is true for any agency, courts may limit the charges if they violate the law. In EEOC v. Freeman, the U.S.

District Court dismissed all EEOC claims that arose from hiring decisions made prior to 300 days before

charges were filed. 2011 WL 337339 (D. Md. Jan. 31, 2011). 25 http://www.eeoc.gov/eeoc/initiatives/e-race/why_e-race.cfm
Criminal Background Checks and the EEOC’s Conviction Records Policy 5

The 2012 Guidance states categorically that any employer policy disfavoring persons with 

criminal records disproportionally affects racial and ethnic minorities, particularly black or 

Hispanic with criminal records nationwide.

26 It bases this declaration on data from the U.S. 

Department of Justice’s Bureau of Justice Statistics showing nationwide conviction rates of 

blacks and Hispanics27 disproportionately higher than their representation in the general 

population of the United States.28 The EEOC cautions employers against drawing 

conclusions driven by racial or ethnic animosity, as well as decisions infected by stereotyped 

thinking which might lead an employer to reject a black or Hispanic applicant based on a 

higher than average likelihood of a criminal history.

29

Based on its statistical information, the EEOC regards as likely disparate impact any 

exclusion of a black or Hispanic job applicant or employee with a criminal record. This 

would hold true regardless of the type of crime, the type of job, the location, or the nature of 

the employer’s business, unless the employer uses what the EEOC considers a narrowly 

drawn or “targeted” screen that does not exclude all persons with criminal records, or 

enquires into the details of each applicant’s history to determine suitability and establishes a 

rationale that is consistent with business necessity.30 The EEOC defines “targeted 

exclusions” as “an employer policy or practice of excluding individuals from particular 

positions for specified criminal conduct with a defined time period, as guided by the Green

factors.” 31

The “Green” factors were set out in 1977 in a three-judge panel decision of the Eighth 

Circuit Court of Appeals, Green v. Missouri Pacific Railroad.

32 The Green factors are 1) the 

nature and gravity of the offense; 2) the time passed since the offense and/or completion of 

the sentence; and 3) the nature of the job held or sought.

33

The EEOC, as is true of many other federal agencies,34 has broad investigative powers. The 

EEOC’s 2012 Guidance states that the agency may investigate a charge in light of its national 

data on disparate impact and consider contrary data provided by employers.35

 26 2012 Guidance at 10.

In the context 

of litigation, however, existing disparate impact case law requires a plaintiff to bear the initial 

27 The 2012 Guidance uses the phrase “race and national origin.” Id. 28 The elevated incarceration statistics are used by the EEOC “as a proxy for conviction data.” 2012 Guidance at 

n.69. 

29 2012 Guidance at 7. The EEOC would consider drawing such conclusions unlawful disparate treatment. 30 The 2012 Guidance describes and gives examples of “targeted exclusions,” or “screens.” See 2012 Guidance 

at 17. Title VII shifts the burdens of production and persuasion to the employer to demonstrate that the 

challenged practice is job related for the position in question and consistent with a business necessity.

31 2012 Guidance at 17. 32 Green v. Missouri Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977. 33 2012 Guidance at 15-16. 34 See Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 508-509 (1943) and Oklahoma Press Pub. Co. v. 

Walling, 327 U.S. 186, 214 (1946).

35 2012 Guidance at 9-10. “For example, an employer may present regional or local data showing that African 

American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s 

particular geographic area.”
6 Introduction and Background

burden of proof.

36

The EEOC held two public meetings prior to the publication of the 2012 Guidance. At the 

public meeting in November 2008 the EEOC invited eight speakers–six in favor of its views 

and two opposed. In July 2011, the EEOC held another public meeting to which ten speakers 

were invited, eight generally supporting the EEOC’s stated views,37 and two possibly

somewhat equivocal.38 The law does not require, and the EEOC did not provide, a draft of 

the new guidance to meeting speakers or the public on either occasion, nor did it provide a 

draft at any time before the guidance was issued. The EEOC received approximately 300 

written public comments for the 2011 meeting, many from ex-offenders39 and advocacy 

organizations supporting limits on using criminal histories, many from individuals, groups 

and businesses opposing restrictions on use or the elimination of background checks.40 The 

EEOC did not respond publicly to comments or speaker testimony but says it considered 

them in its deliberations, and in fact, the new guidance does not forbid or restrict employers 

from obtaining background checks.

The 2012 Guidance is couched largely in a series of factual examples followed by “best 

practices,” rather than commands. In the briefing, EEOC speaker Carol Miaskoff stated

categorically that it does not require individualized consideration 41

, although the 2012 

Guidance could reasonably be read as strongly recommending this approach. The text states 

that Title VII “does not necessarily require individualized assessment in all circumstances ...

the use of a screen that does not include individualized assessment is more likely to violate 

Title VII ... [and] the use of individualized assessments can help employers avoid Title VII 

liability...”42 Employer counsel at the briefing clearly viewed this warning to mean that any 

use of criminal history for a protected class member without individual assessment was 

presumptively illegal and in fact they would be highly vulnerable to suit,43 an impression 

contrary to what the EEOC says it intended.44

Once a claim is brought against an employer, the 2012 Guidance provides that the employer 

may defend against the charge by showing that its policy does not cause a disparate impact, 

 

36 Lewis v. City of Chicago, 130 S. Ct 2191, 2197 (2010) (Required that a plaintiff establish a prima facie 

disparate-impact claim by showing that the employer uses a particular employment practice that causes a 

disparate impact on one of the prohibited bases.) (internal quotations removed). The Court reversed in favor of 

the plaintiffs in that case: black firefighters who challenged a qualification test. 37 One invited speaker did not attend. 38 Attendee lists were graciously supplied by the EEOC. 39 In this report the term “ex-offender” is used to include anyone who has a recorded brush with criminal laws, 

even if no charges were ever filed.

40 These comments with personal information redacted are available from the EEOC or the Commission upon 

request.

41 The individualized assessment includes “notice to the individual that he has been screened out because of a 

criminal conviction; an opportunity . . . to demonstrate that the [policy] should not be applied due to his 

particular circumstances; and . . . whether the additional information . . . warrants an exception . . . show[ing] 

that the policy as applied is not job related and consistent with business necessity.” 2012 Guidance at 15. 42 2012 Guidance at 2, 14, 18-20. 43 See remarks of Don Livingston, infra at 18, see also remarks of Garen Dodge, infra at 58. 44 See remarks of Carol Miaskoff, infra at 30.
Criminal Background Checks and the EEOC’s Conviction Records Policy 7

using local conviction rates for blacks or Hispanics and/or its own job application data. The

Guidance allows the EEOC to reject the showing, however, if it concludes that some

applicants who might be in the applicant pool have been discouraged from applying because 

of the employer’s reputation in the community.

45 The Guidance does not indicate the method 

of assessment, which potentially complicates the employer’s efforts to comply.

The employer may also defend against the charge by demonstrating that its policy or practice 

is job-related for the position in question and consistent with business necessity. The EEOC 

believes there are two established legal or evidentiary criteria for successfully making such 

demonstration. One is the formal validation for each specific job under the rarely used 1978

Uniform Guidelines on Employee Selection Procedures mentioned above and the other is the 

creation and use of a specific analysis for each job description that considers the “Green”

factors and an individualized assessment.

46 The 2012 Guidance does not address or 

acknowledge the practical difficulties of performing individualized assessments in largescale hiring by an employer.

47

The new guidance emphasizes individualized assessment in part because it asserts that 

former offenders pose risks that are overestimated by employers, particularly as the years 

pass with no further convictions. Speakers and advocacy groups at the briefing who work 

with former offenders supported this view, and gave examples of States in agreement that 

have passed laws restricting the use of criminal histories after a certain number of years 

without recidivism, and the groups’ own successes placing ex-offenders they screen who 

become valued employees.

Views of Briefing Speakers 

Views on whether the 2012 Guidance has added new conditions and restrictions on 

employers’ use of criminal background checks differed among speakers. Speaker Carol 

Miaskoff of the EEOC believes that it does not contain new restrictions, just a better 

explanation of the existing ones. From the EEOC’s point of view, employers have long had a 

legal obligation to refrain from excluding any member of a protected class who has not been 

individually considered or screened and given a chance to pursue a legitimate occupation, the 

protected class in this instance including mainly black and Hispanic job applicants or 

employees with criminal records.

48

Speakers associated with background screeners or employers viewed the risks of hiring 

someone with a past conviction for a violent or financial crime or other felony as indicating 

potential legal liability, financial and inventory losses, or untrustworthiness.49

 45 See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) (consistently enforced discriminatory 

policy deters job applications from those unwilling to subject themselves to the humiliation of explicit and 

certain rejection).

Speaker 

William Dombi, for example, discussed the heightened vulnerability and risk sensitivity of 

46 Green v. Missouri Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977); 2012 Guidance at 14. 47 The Green factors, by contrast, would likely be suitable for scaling up for multiple applicants. 48 See remarks of speaker Carol Miaskoff, infra at 15. 49 See for example, remarks of Richard Mellor, infra at 86-88 and Don Livingston, infra at 17-19.
8 Introduction and Background

the home health care industry,50 which along with many other home-based service businesses

is concerned with physical or financial risks for clients, customers and co-workers.51

Speakers associated with employers viewed the power to exclude those with certain criminal

histories as essential to ensuring a safe environment for customers and fellow employees, to

reducing negligent hiring lawsuits, to reducing inventory theft, embezzlement or other

crimes, to comply with state laws requiring background checks and exclusion of former

offenders in particular industries, and to assess an applicant’s trustworthiness. They asserted

the need to retain the discretion to decide for themselves how best to protect their customers

and employees based on policies reflecting their own needs and experience.52

Employers and trade group speakers expressed considerable concern also with the EEOC’s

reading of Title VII as rejecting state law mandates barring employment of certain exoffenders in some industries pursuant to federal preemption power.53

As to compliance, speaker Don Livingston objected to what he viewed as the EEOC’s

reliance on ad hoc, fact-specific examples and the subjective nature of the Guidance rather

than clear legal analysis.54 He viewed the EEOC’s new guidance as leaving the agency with

few legal boundaries and wide discretion to accept or reject employer defenses in the face of

an investigatory period that is often lengthy and expensive for employers.55 Speaker Jeffrey

Sedgwick considered the EEOC’s social science research insufficient to support its 2012

Guidance.56 Speaker Todd McCracken viewed the 2012 Guidance as opaque, confusing, and

difficult for employers to follow or implement.57 Speaker Jonathan Segal viewed as

problematic the EEOC’s use of national data to establish disparate impact and its view of

State mandates as preempted.58

The EEOC’s new guidance, on the other hand, appears to accord weight to certain data

showing a rapid decline in risk for employers over time, and indicates that employers should

consider allowing any ex-offender to show employability by refraining from subsequent

50 See remarks of speaker William Dombi, infra at 88-89; see also remarks of speaker Richard Mellor

concerning the needs of retail businesses for customer safety and theft deterrence, infra at 86-88. 51 See remarks of Lucia Bone, infra at 51. 52 See remarks of speaker Richard Larson, infra at 56 (Mr. Larson believes many small employers are unaware

of the 2012 Guidance). 53 See 42 U.S.C. §2000e-7 (“Nothing in this subchapter shall be deemed to exempt or relieve any person from

any liability, duty, penalty, or punishment provided by any present or future law of any State or political

subdivision of a State, other than any such law which purports to require or permit the doing of any act which

would be an unlawful employment practice under this subchapter.”) 54 See remarks of Don Livingston, infra at 17-18. 55 Federal enforcement is also expensive for taxpayers. For example, over five fiscal years (FY 2008, 2009,

2010, 2011, 2012), EEOC’s outside legal counsel expenditures alone were $150,572,000. See Andrew

Ramonas, "Under Contract: A Special Report on Government Legal Spending," The National Law Journal,

Mar. 11, 2013, pp. 17-34, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id= 1202586644243. 56 See remarks of speaker Jeffrey Sedgwick, infra at 24-27. 57 See remarks of speaker Todd McCracken, infra, at 81. 58 See remarks of speaker Jonathan Segal, infra at 83-84.
Criminal Background Checks and the EEOC’s Conviction Records Policy 9

criminal offenses, regardless of the nature of the offense.59 The 2012 Guidance suggests that

elapsed crime-free time subsequent to the offense offers an objective metric supporting the

EEOC’s view that automatically excluding former offenders from employment is

unwarranted and illegal.60

Advocates for ex-offenders expressed the concern that former offenders are never given a

chance to make their case to an employer because they are usually turned down immediately

with no further explanation. Both speaker Roberta Meyers of the National H.I.R.E. Network

and speaker Glenn E. Martin of the Fortune Society61 reported considerable frustration on

this issue, despite their record of success in screening and placing ex-offenders in jobs. Both

cited research showing that minority ex-offenders are hired less often, compared to nonminorities with the same criminal record, although this would be prohibited as discriminatory

treatment rather than disparate impact discrimination.62

Speakers associated with employers63 did not take issue with data supplied by advocacy

groups such as the Fortune Society, and agreed that discriminatory treatment was illegal.

Rather, they stated that, although the new guidance does not flatly prohibit employer policies

restricting the hiring of ex-offenders of certain descriptions, its factual examples allowing the

restrictions are seemingly contradicted by “best practices” statements saying the opposite and

amount to “strict in theory; fatal in fact” enforcement.64

Some of the employers’ apprehensions concerning EEOC enforcement appeared in general to

be based on the difficulty of determining how to comply, rather than on any disagreement by

employers with the need for former offenders to be employed. Other apprehensions include

bad-faith investigations or investigations stretched out over a long time period, questionable

or sanctioned litigation tactics or practices as in Peoplemark,65 refusal to accept employers’

state law mandates, reliance on inadequate research and data, and possible encroachment on

employers’ discretion to decide on employee qualifications based on employer needs as, for

example, in the EEOC’s ongoing investigation of G4S Secure Solutions USA, Inc.66

59 2012 Guidance at 15, n.118. 60 2012 Guidance at 19-20. 61 As did a New York group, Get Out and Stay Out, expressed in a submitted comment. See

http://www.gosonyc.org/HomePage.php. 62 See remarks of briefing speakers Roberta Meyers and Glenn E. Martin, infra at 45, 48. 63 Employer-related trade association speakers (Panel III) included Ms. Miller, Mr. Fishman, Mr. McCracken,

Mr. Segal, Mr. Mellor, and Mr. Dombi. See Panel III speaker remarks, infra at 75. 64 See, for example, the March 13, 2012 audio recording of oral remarks of EEOC Commissioner Victoria

Lipnic to the U.S. Chamber of Commerce at

http://link.brightcove.com/services/player/bcpid1062994879001?bckey=AQ~~,AAAAEkkpZUk~,X1iY6-

4YH0xD1Wm6DlVB4kWeHRwgu8hA&bctid=1505101556001. 65 See description infra at 10. 66 See remarks of briefing Julie Payne, infra, at 54, Garen Dodge, infra at 58-60, and Montserrat Miller, infra at

104.
10 Introduction and Background

Recent Cases 

Several recent court cases involving the EEOC’s criminal background policies predating the 

2012 Guidance have not been deferential to the agency or its policies. The SEPTA case in 

particular formed part of the rationale for the EEOC’s issuance of the new Guidance.

67

• El v. Southeastern Pennsylvania Transportation Authority (SEPTA), 479 F.3d 232 (3d

Cir. 2007) affirmed the grant of summary judgment against a black plaintiff who was 

dismissed from his job as a paratransit driver when, a few weeks after his hiring, 

SEPTA belatedly realized that he had a 47-year old second-degree murder conviction 

that he had disclosed on his application. SEPTA’s subcontractor had a policy that 

disallowed anyone with a violent criminal conviction, regardless of the time elapsed, 

and Mr. El did not present his own expert witness to rebut SEPTA’s assertion of jobrelatedness and business necessity. The court recognized the heightened vulnerability

of a closed-car environment with disabled passengers. SEPTA’s expert witness was 

Professor Blumstein, one of our briefing speakers, who testified that someone who

had committed a violent crime--even after as in this case more than 40 years--never 

presents as low a risk as a non-offender.

68

• In EEOC v. Peoplemark, the EEOC charged that the employer categorically refused 

to hire anyone with a criminal record, even though Peoplemark had provided 

evidence to the EEOC showing this charge was untrue. The employer filed a motion 

for summary judgment seeking dismissal of the complaint, and sanctions against the 

EEOC. A month later, the EEOC acceded, in a joint motion agreeing that Peoplemark 

was the prevailing party. Because of the conduct of the EEOC, the court awarded 

attorneys’ fees to the employer.69

• In EEOC v. Freeman, a criminal history/bad credit history case, the court ruled 

against the EEOC and granted defendant’s motion for summary judgment.70 The 

judge ruled that the EEOC had failed to offer reliable expert testimony and statistical 

analysis that demonstrated disparate impact from a specific employment practice. The 

court rejected as insufficient the EEOC’s national statistics showing disparate impact. 

During the case, the court had granted defendant Freeman’s motion to compel 

disclosure of the EEOC’s own background screening practices indicating that the 

EEOC uses criminal background history for all of its employees, and credit check 

information on about 90% of its workforce.71

• EEOC has recently filed disparate impact suits against car manufacturer BMW and 

 67 See written statement of Speaker Carol Miaskoff, EEOC, infra at 220. 68 The court noted reservations about such policies in general, as the 2012 Guidance states. 69 EEOC v. Peoplemark, Inc., 2011 WL 1707281 (W.D. Mich. Mar. 31, 2011). 70 EEOC v. Freeman, No.: RWT 09cv2573, slip op. (D.Md. Aug. 9, 2013). 71 2012 U.S. Dist. LEXIS 114408, 6-7 (D. Md. Aug. 14, 2012).
Criminal Background Checks and the EEOC’s Conviction Records Policy 11

the Dollar General Stores for their use of criminal history in employment decisions.72

In conciliating criminal background cases outside of litigation the EEOC has been very

successful. In a negotiated conciliation agreement with PepsiCo, for example, the EEOC

obtained a settlement of over three million dollars on behalf of black applicants with either

arrests or criminal convictions and Pepsi’s agreement to change its race-neutral policy that

resulted in disparate impact effects.73 The EEOC has also concluded an agreement with

transportation company J.B. Hunt regarding Hunt’s denial of a truck driver position to a man

with a criminal record that the EEOC contends was unrelated to the job.74

Constitutional Question

The 1991 amendment to Title VII banning disparate impact discrimination has been an

integral part of the Act and undisturbed by Congress ever since its adoption over 20 years

ago. The constitutional issue of whether or to what extent the disparate impact provisions of

Title VII of the Civil Rights Act of 1964 are consistent with the Constitution’s guarantee of

equal protection was raised by Commissioners Kirsanow and Gaziano.75 The issue, however,

has not been squarely presented to the Court.76

Surveys and Research Provided by Speakers77

One of the briefing speakers, Nick Fishman, co-founder of a screening firm,78 provided his

firm’s survey of 992 U.S.-based employers who use various screening companies, not only

his. In general, the survey found that most responding employers obtained criminal

background checks, most have reviewed and adjusted their policies in light of EEOC

Guidance policies, most did not categorically exclude those with criminal records from being

hired, and in fact, fewer than 5 percent reported excluding candidates based on a prior

conviction. These survey results are supported in research by Professor Michael Stoll and

Shawn Bushway, who found that where employers were not legally prohibited from hiring

anyone with a criminal record, the performance of background checks had no effect on hiring

ex-offenders.79

72 See http://www.eeoc.gov/eeoc/newsroom/release/6-11-13.cfm; see also

http://www.wvago.gov/press.cfm?ID=707&fx=more (reaction of nine state attorneys general) 73 See http://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm. 74 See http://www.eeoc.gov/eeoc/newsroom/release/6-28-13c.cfm 75 Br. Tr at 37, 42. 76 See Justice Scalia’s opinion concurring in Ricci v. DeStefano, 557 U.S. 557 at 594-596 (2009) (“Whether, or

to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with

the Constitution's guarantee of equal protection? The question is not an easy one . . . The Court's resolution of

these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal

protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—

to make peace between them.”). 77 The Commission has not independently verified any research discussed in this report. 78 Nick Fishman of EmployeeScreenIQ. 79 Michael A. Stoll & Shawn D. Bushway, The Effect of Criminal Background Checks on Hiring Ex-Offenders,

7 CRIMINOLOGY & PUB. POL’Y 371, No. 3 (2008). See also Michael A. Stoll, Ex-Offenders, Criminal
12 Introduction and Background

Ex-offender advocacy group speakers in the briefing disagreed that employers are willing to

hire ex-offenders, stating that their experience strongly indicated the opposite. Glenn E.

Martin of the Fortune Society provided statistics showing disparate treatment of applicants

based both on race and on prior convictions.80 Written public comments sent to the

Commission from ex-offenders also recounted continuing rejections by employers, although

a slight majority of the 300 comments submitted by the public supported the right of

employers to decide for themselves who to hire and on what basis.

Speaker Alfred Blumstein’s joint research with Professor Kiminori Nakamura is relied on

and referenced by the EEOC in its new Guidance. Excerpted below is one of the graphs from

their research, showing the rapidly decreasing divergence in risk of re-arrest in succeeding

two-year periods between former arrestees and non-arrestees.81 “Redemption,” as they call it,

is the theory, supported by their studies, that as a certain number of years pass with no further

arrests, an ex-offender rapidly approaches the risk level of someone with no record.

Comparison with the Never Arrested (Age 18 Violent, Property)82

This graph shows, for each successive year after the first two, the reduction in the probability

of re-arrest compared to persons who have never been arrested. The drop is steep until

approximately the twelfth year after initial arrest, when it decreases more slowly until it

comes close to matching the probability of re-arrest at year 23 compared to the probability of

arrest for non-offenders. The authors also provide graphs that show actual conviction data,

but do not compare ex-offenders with non-offenders. Instead, they compare ex-offenders to

what they term the “general population,” by which they mean a blended population of both

Background Checks, and Racial Consequences in the Labor Market, 2009 U. CHI. LEGAL F. 381 (2009)

(restricting background checks has unintended consequences for ex-offenders and black men). 80 See Glenn E. Martin written submission, infra at 194. 81 Note that arrests are highly correlated with convictions, although not identical. 82 Alfred Blumstein& Kiminori Nakamura, Redemption in the Presence of Widespread Criminal Background

Checks, 47 CRIMINOLOGY & PUB. POL’Y 327, 343, No. 2 (2009), available at

http://www.search.org/files/pdf/Redemption_Blumstein_Nakamura_2009Criminology.pdf. Blumstein and

Nakamura completed their recent work, “Extension of Current Estimates of Redemption Times: Robustness

Testing, Out-of-State Arrests, and Racial Differences,” for the U.S. Department of Justice’s National Institute of

Justice in November of 2012. See https://www.ncjrs.gov/pdffiles1/nij/grants/240100.pdf.
Criminal Background Checks and the EEOC’s Conviction Records Policy 13

ex-offenders and non-offenders. By contrast, employers choose between known ex-offenders

and known non-offenders, using the information available to them.

According to Professor Blumstein, in his testimony as an expert witness for SEPTA in the

2007 El v. SEPTA case mentioned above, no former offender will ever be “less or equally

likely to commit a future violent act than comparable individuals who have no prior violent

history.” 83 Another group of researchers (Kurlychek, Brame and Bushway) echoes this

observation, stating “even individuals whose last offense record occurred years ago will, as

a group, generally exhibit some nonzero risk of reoffending in the future.”84 Both

Professor Blumstein and his co-author Kiminori Nakamura concluded, however, that after a

considerably shorter time period than 23 years the risk of re-offense was low enough so that

the risk posed to employers and the public should be weighed against the societal burden of

unemployment among former offenders, but stated that individual employers should make

decisions based on their own circumstances.85

In his remarks to the Commission, Professor Blumstein did not allude to his views expressed

as an expert witness in the SEPTA case, and also did not provide a specific number of years

for convergence of risk where the comparison group was non-offenders. Professor Holzer’s

research led him to agree that background checks result in increased employment among

black and Hispanic individuals, but also agreed with the EEOC that the new guidance was a

reasonable way to evaluate the employment risk of ex-offenders. He disagreed strongly that

ex-offenders’ risk of re-offending never diminished to the same risk posed by non-offenders.

Professor Holzer pointed to research by Pager, Western and others that showed a significant

disadvantage in hiring encountered by black and Hispanic individuals with records,

compared to white individuals with similar records.86

Public Comments

The Civil Rights Commission received almost 300 public comments reflecting considerable

interest in this issue. These public comments from both groups and individuals are available

from the Commission.87

83 El v. S EPTA, 479 F.3d 232, 246 (3dCir. 2007).

 Most of the individuals’ comments were solicited by advocacy

84 Megan C. Kurlychek, Robert Brame & Shawn D. Bushway, Scarlet Letters and Recidivism: Does an Old

Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483, 490, No. 3 (2006). 85 See also John Monahan, "A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners,

Predators, and Patients," 92 Virginia L.R. 391-435 (April 2006) available at

http://www.virginialawreview.org/content/pdfs/92/391.pdf ; John Monahan, "The Inclusion of Biological Risk

Factors in Violence Risk Assessments," in Ilina Singh, Walter Sinnott-Armstrong and Julian Savulescu (Eds.)

Biopredictions, Biomarkers, and Bad Behavior: Scientific, Legal and Ethical Challenges, (Oxford University

Press, Forthcoming 2013). 86 Devah Pager & Bruce Western, Investigating Prisoner Reentry: The Impact of Conviction Status on the

Employment Prospects of Young Men, (2009), submitted to the U.S. Department of Justice, available at

https://www.ncjrs.gov/pdffiles1/nij/grants/228584.pdf. See also Devah Pager et al., Discrimination in a LowWage Labor Market: A Field Experiment, 74 AM. SOC. REV. 777 (2009), available at

https://www.ncjrs.gov/pdffiles1/nij/grants/228584.pdf on page 64. Professor Pager found ex-offender stigma

effects larger for blacks than whites—65 percent versus 50 percent. 87 Comments from individuals have most personal information redacted.
14 Introduction and Background

groups such as the National Association of Background Screeners, the Sentencing Project, or

Sue Weaver CAUSE, among others.

Of the total, about 83 comments were from individuals, mostly ex-offenders, supporting the

2012 Guidance, and approximately 28 from mostly non-offenders that were critical of the

2012 Guidance. Comments from individual former offenders recounted continuing rejections

they believed were based on their criminal histories. There was little indication in their

comments that any had sought the intervention of ex-offender support groups. In addition,

there were about 42 comments from groups supporting the 2012 Guidance, who welcomed

its focus on treating each individual on his or her own terms with no predetermined or

automatic rejection.

About 121 comments came in on behalf of employer-related groups supporting the goals of

the 2012 Guidance, but objecting to the additional burdens on employers stemming from

individualized or “targeted” screens and the lack of direction as to how to comply, compared

to the 1987 Guidance. Comments also objected to the perceived lack of transparency of the

process by which the 2012 Guidance was produced. A major concern of those objecting to

the Guidance was a fear that the true intent of the EEOC is to ban criminal record checks

entirely and expressed mistrust of the Guidance’s vague language that increased the potential

for unpredictable prosecutions.

Those sending comments included two commissioners of the EEOC (Victoria Lipnic and

Chai Feldblum), the Federal Trade Commission, the National Employment Law Project, the

Consumer Data Industry Association, the Brennan Center for Justice, the U.S. Department of

Justice, the Safer Foundation, the Sentencing Project, the National Association of

Professional Background Screeners, the U.S. Chamber of Commerce, Get Out and Stay Out

(New York), the City of Seattle Office for Civil Rights, the Human Rights Defense Center,

the Kings County District Attorney’s Office, and 39 co-signatories of a letter that included

representatives of credit bureaus, victim advocacy, security companies, screeners, financial

services, amusement parks, small business, merchants, anti-child abuse, and employment

agencies.

Briefing Speakers’ Remarks to Commission

The briefing’s first speaker was Ms. Carol Miaskoff, Acting Associate Legal Counsel, Office

of Legal Counsel, EEOC. Her remarks are set out below, as are in turn, remarks of other

speakers in the three panels.88

88 Speakers’ and commissioners’ oral remarks are in some instances edited to increase readability without

altering content. The complete transcript is available from the Commission’s website,

 All speakers were limited to seven minutes each, but in

addition submitted written statements or slide presentations expanding on their views that are

included in this report. Short biographies of each speaker are also included. Commissioners

asked questions at the conclusion of each panel of speakers. Please note that some speakers

used the phrase “criminal background check” to mean, “use of criminal background history.”

Speaker Carol Miaskoff of the EEOC pointed out that the 2012 Guidance does not in any

www.usccr.gov.
Criminal Background Checks and the EEOC’s Conviction Records Policy 15

way limit an employer’s right to obtain background check information; it does strongly 

suggest limits on the use of the background check information.

Panel One Speakers

CAROL MIASKOFF, ACTING ASSOCIATE LEGAL COUNSEL, EEOC:

The EEOC, as you know, is a bi-partisan commission of five presidentially 

appointed, and Senate confirmed Commissioners. The EEOC's mandate from 

Congress is to enforce Title VII of the Civil Rights Act of 1964.

Title VII prohibits employment discrimination on the basis of race, color, 

religion, sex or national origin. It has applied now for almost 50 years.

The EEOC enforces Title VII first by investigating charges of discrimination 

brought to us by job applicants, or employees, who assert that covered 

employers violated the law, either by treating them differently because of their 

race, for example, or by applying to them a seemingly neutral policy that 

nonetheless operates to disproportionately exclude people of their race, but is 

not job related and consistent with business necessity.

When the EEOC investigates a Title VII charge, it gathers the facts necessary 

to decide if there is reasonable cause to find a violation. My statement today 

will summarize the EEOC's recent enforcement guidance on the consideration 

of arrest and conviction records and employment decisions under Title VII. 

The substance of this guidance is not a major departure from existing 

precedent from the courts and from the EEOC.

In short, Title VII does not stop employers from meaningfully considering 

criminal history information when they make employment decisions. As a 

Federal Court said when interpreting Title VII for a hiring race discrimination 

case in the 1970s, and as the EEOC's policy statements reiterated in 1987 and 

1990, criminal history may be used to screen applicants by considering the 

nature of the crime, the time elapsed and the nature of the job.

However, under Title VII, the mere fact of having a criminal record should 

not automatically, and without consideration, bar a person from all future 

employment.

The 2012 Guidance recognizes that reentry is a complicated issue. And that 

employment discrimination is one piece of the puzzle, albeit a real piece. The 

guidance looks at the different kinds of criminal history, that are now 

available online, and some of the problems with its accuracy and 

completeness.
16 Introduction and Background

The Guidance recognizes the other legal duties faced by employers at the 

federal, state and local levels and the concerns they have about workplace 

safety and reducing theft. In this context the guidance reviews recent statistics 

about arrests and incarceration in America and then breaks those numbers 

down by race and national origin.

The Guidance is obviously about the Title VII piece of this puzzle. It begins 

by discussing disparate treatment, which occurs when similarly qualified job 

applicants who disclose or are found to have equivalent criminal records are 

nonetheless given different employment opportunities because of their race.

The Guidance then turns to disparate impact, which was the focus of the 

EEOC's 1987 and 1990 policies. The new Guidance analyzes disparate impact 

in the same fundamental way, but in greater depth and in light of the 1991 

Civil Rights Act, which formally added disparate impact to Title VII.

The 2012 Guidance gives a step-by-step analysis to [assessing] disparate 

impact. The first step is to identify the particular policy or practice at issue. In 

other words the policy of excluding people from employment if they have a 

criminal record or if they have a record of a particular conviction and are 

seeking a particular job.

The second step is to determine if there is evidence that the policy or practice 

caused a disparate impact. The EEOC's starting point, as the national 

enforcement agency, is national criminal justice data demonstrating that 

Blacks and Hispanics are arrested and incarcerated in numbers greatly 

disproportionate to their representation in the population.

This is not a legal conclusion in itself. The employer is welcome to provide 

evidence to demonstrate that its policy or practice does not have a disparate 

impact. The EEOC also may gather data itself that is unique to the particular 

case.

If disparate impact is found, the third step is the employer defense of jobrelated and consistent with business necessity. If that is satisfied the final step 

is determining if there is an effective less discriminatory alternative the 

employer refused to adopt.

Understanding business necessity is the heart of the Guidance. The 

Commission states that employers can reliably meet the standard in two ways. 

The first involves validating the policy under the Uniform Guidelines on 

Employee Selection Procedures.

The second way involves the basic test I discussed above using a targeted 

screen to consider at least the nature of the crime, the time elapsed and the 

nature of the job and providing an opportunity for individualized assessment.
Criminal Background Checks and the EEOC’s Conviction Records Policy 17

Individualized assessment is not burdensome and it is not complicated. 

Simply put it means that the employer tells an applicant or employee that he 

may be excluded from employment because of past criminal conduct. And 

then it gives him an opportunity to explain or submit information to put his 

criminal record into context so that the employer can factually judge its 

relevance to the employment situation.

The individual could provide documentation of error in the record or 

information about work experience, personal references, training, bonding or 

other related factors. The goal of the guidance here is to alert employers about 

the kinds of information that may be relevant, not to mandate a checklist of 

factors.

I will conclude there. There is more in my written testimony that everyone is 

more than welcome to read. Thank you.

DON LIVINGSTON, PARTNER, AKIN, GUMP, STRAUSS, HAUER & FELD:

Good morning. I'll comment on what the Guidance says, what the Guidance 

is, the educational and transformational consequences of the Guidance, and 

some perplexing issues and the failure of the Guidance to recognize trust and 

reliability as important linkages between law-breaking and work. 

The EEOC guidance on the consideration of arrest and conviction records in 

employment decisions is presented in a lengthy document; but the rule it 

establishes is simple: Employers commit race discrimination if they choose 

law-abiding applicants over applicants with criminal convictions unless the 

employer goes through a highly subjective decision making process that 

involves the collection of information and weighing of multiple factors, 

including the individual's particular circumstances, education and training 

post-conviction, length and consistency of employment history, and character 

references. If the applicant is rejected after consideration of these factors, 

presumptively no race discrimination occurs.

An analytical flaw in the guidance is that it does not explain whether or why it 

is race discrimination to reject the applicant without individualized assessment 

but it is not race discrimination to reject the same applicant with the 

individualized assessment.

The Guidance is not authoritative in the way a law is authoritative. The 

Guidance is not a regulation. Indeed, the EEOC has no authority under Title 

VII to issue substantive regulations under Title VII. The Guidance is not 

binding, even on the EEOC, which is free to take inconsistent positions during 

its own investigations or in litigation when it sues employers.
18 Introduction and Background

As a general matter the Supreme Court gives little deference to the EEOC's 

non-regulation interpretations of Title VII. This is thoroughly discussed in a 

study by Melissa Hart, called "Skepticism and Expertise." It was published in 

the Fordham Law Review in 2006. The EEOC's Title VII Guidance is 

followed by the courts to the extent the courts finds the guidance persuasive 

based on thoroughness, logic and fit with prior interpretations and any others 

sources of weight. That means simply that the court will consider the EEOC's 

guidance as it would any other argument.

The EEOC's Guidance already has played a significant educational role. As 

result of the Guidance there has been greater awareness by employers that 

their policies may be unnecessarily restrictive. The Guidance has also been 

transformational. From the heightened awareness from education has come 

liberalization, a loosening if you will, on the restrictions on the hiring of 

persons with criminal records.

And because the Guidance implies an expectation that the outcome of an 

EEOC charge investigation will hinge upon whether the employer has 

weighed the multiple factors stated in the EEOC Guidance, employers have 

changed practices to conform to the EEOC's Guidance solely to avoid 

entanglements with the EEOC, including litigation.

The Guidance, though, remains perplexing to employers. For example, 

employers do not understand the EEOC's position that they commit race 

discrimination if they reject an applicant with a criminal history of violence 

unless the rejection follows an individualized assessment.

Employers also do not understand why they are at risk for an EEOC sex 

discrimination lawsuit if they chose to hire a law abiding female applicant 

over a convicted felon, who is male.

In addition employers expect that the individual assessment that they are 

being asked to undertake will result in second-guessing of their decisions by 

the EEOC. Employers have been given no guidance on how the individual 

decisions should be made as, for example, how they should weigh the various 

factors. They are rightly concerned that if they follow the EEOC's approach 

and make subjective case-by-case assessments of applicants’ suitability for 

work, as for example hiring some applicants who have felony violence 

convictions but rejecting others with similar convictions, they will face an 

increase in the number of discrimination lawsuits by rejected applicants.

Finally, by placing so much emphasis on the issue of recidivism, discussions 

about law breaking and work have de-emphasized two important traits, trust 

and reliability, or conscientiousness.
Criminal Background Checks and the EEOC’s Conviction Records Policy 19

Prior to the EEOC's Guidance, these characteristics were considered important 

linkages between law-abiding behavior and employment. Both trust and 

reliability have been emphasized by the EEOC, the U.S. Office of Personnel 

Management and the United States Supreme Court as overriding interest 

shared by employers, employees and consumers.

For example, the EEOC's Suitability and Security Program Handbook, which 

the EEOC uses to make its own hiring decisions for its own employees, states 

that a history or pattern of practice of criminal activity creates doubt about a 

person's judgment, honesty, reliability and trustworthiness.

The U.S. Office of Personnel Management's Introduction to Credentialing, 

Suitability and Security Clearance Decision Making Guide, states that 

criminal activity creates doubts about an individual's judgment, reliability and 

trustworthiness and calls into question an individual's ability or willingness to 

comply with laws, rules and regulations.

The EEOC's new Guidance seeks to reject the common-sense notion that 

continues to hold sway when the EEOC itself is hiring, that the willingness to 

follow society's rules is relevant to whether the employer can depend on the 

individual to faithfully and honestly perform his or her job duties. When an 

employer decides that a lawbreaker cannot be trusted to faithfully perform on 

the job, the employer should not be branded by the EEOC with the allegation 

of race or sex discrimination.

HARRY HOLZER, PROFESSOR OF PUBLIC POLICY, GEORGETOWN UNIVERSITY:

Good morning and thank you for inviting me today. I'd like to very briefly 

make four points about the 2012 Guidance by the EEOC and the broader 

issues of criminal records for employment.

First point, the prevalence of arrests and convictions among less educated men 

substantially reduces employer willingness to hire them later in life and 

worsens their employment outcomes more generally, in a way that generates 

clear disparate impacts on minority, and especially black men.

Now it's true that many young men enter and then exit prison with very poor 

basic skills and low levels of education, and their time in prison further 

reduces their work experience and their marketable skills. But on top of that 

the great reluctance of most employers to hire men with criminal records, 

regardless of their individual characteristics, further worsens their 

employment outcomes.

The large negative effects of incarceration on post-release employment 

appears to be a major reason for the continuing deterioration of employment 

among young black men over the past few decades. And, by the way, this is 
20 Introduction and Background

not because young black men have an innately greater proclivity towards 

crime, but instead because they have been the most disadvantaged by 

economic changes in the labor market that have reduced their legal 

opportunities.

Point number two. The use of criminal background checks by employers can 

have both positive effects on the employment of some minority men and 

negative effects on others. And I believe both the usefulness and the 

limitations of the information should be considered when policies are made 

about their use.

Now it is true that background checks almost certainly reduce employment for 

black men and others with criminal records. It is also true that employer 

background checks seem to raise employment for black men overall; 

presumably by reducing statistical discrimination against men whom 

employers suspect of such activity but who turn out to have clean records.

Background checks can therefore play a very useful role for some groups of 

workers and for employers. But there are important limitations to the positive 

effects of criminal background checks that should be also noted. For one 

thing, there appear to be many errors in these data. For instance, the private 

provision of these records often does not carefully distinguish arrests from 

convictions.

And there appear to be many false positives among apparent offenders, as 

well as false negatives among apparent non-offenders, suggesting that the 

observed differences of criminal activity between the two groups are really 

not as great as they seem to be.

Furthermore, and I know Dr. Blumstein will talk about this, the ability of 

criminal records to predict future contact with the police diminishes greatly 

after the first five to seven years in which a past offender does not commit 

another crime. And again, I'll defer to Dr. Blumstein more on that record.

But importantly, these studies mostly focus on the general probability of new 

arrests rather than the commission of specific new felony offenses. In most 

cases the studies do not tell us whether or not the arrest results in a conviction 

or what type of offense occurred.

Accordingly, it is hard to ascertain the risks of poor job performance, property 

damage, theft or injury to coworker or customers associated with any such rearrest. Since so many offenders are in fact convicted of non-violent felony 

drug conviction or sales it is hard to know the extent to which the risks that 

employers fear from these applicants are really well founded.
Criminal Background Checks and the EEOC’s Conviction Records Policy 21

Point number three. The very high costs of previous criminal histories on 

employment are borne not only by the offenders themselves, but also by their 

families and their children, their communities and the U.S. economy more 

broadly.

Accordingly, having some positive policy efforts to improve employment 

outcomes for this group are in the national interest. Now low employment 

after prison release appears to be quite highly correlated with recidivism, and 

a number of very prominent scholars believe that's a causal effect.

But the negative effects of low employment and recidivism extend far beyond 

the offender himself or herself. For instance, the children of offenders are 

much more likely to engage in negative behaviors and ultimately become 

incarcerated themselves than similar children of non-offenders. And it is 

likely that the low employment and repeat arrests and re-incarceration among 

parents help to generate these worse outcomes among the children.

A lack of employment among offenders almost certainly makes it harder for 

low-income, non-custodial fathers with a child support order to make their 

payments on time, thus denying their families and children an important 

source of household income.

Children and youth growing up in low-income neighborhoods where very few 

adult men work seem to have worse outcomes in life themselves, because of 

the absence of role models for work and labor market contacts and 

connections.

And, finally, the overall U.S. economy appears to suffer when so many adult 

men do not work. Their lost earnings represent lost output and lost 

productivity for economy overall. And the magnitudes of these effects are not 

trivial.

Finally, my last point: The EEOC Guidance should be viewed as one of 

several potentially effective legal and policy efforts to reduce the barriers for 

employment among men with criminal records and thus to improve their 

employment outcomes.

Now, since employer reluctance to hire men with criminal records appears to 

be a major reason for why employment rates of offenders are so low, attempts 

to limit the disparate impacts associated with criminal records should be 

welcome as long as they do not impose undue risks and burdens on 

employers.

Now, in my opinion, the EEOC Guidance does not seek to discourage 

employers, in any way, from doing background checks. It simply tries to 

encourage a more judicious use of the information so gained.
22 Introduction and Background

Furthermore, the EEOC Guidance does not seek to significantly raise the risks 

employers bear from hiring offenders, it simply tries to encourage a more 

accurate assessment of what those risks really are.

As the courts have argued for decades, the length of time since an offense is 

committed, the nature of the offense and the nature of the job should be taken 

into account when assessing the risk of recurrence of any offense and what it 

implies for job performance.

The mere existence of a prior record, conviction or incarceration in and of 

itself may tell us very little about such risks. Furthermore a range of individual 

factors, such as participation and completion of employment and training 

program has been shown to lower the risk of re-incarceration quite 

dramatically. And so this individual consideration should be taken into 

account.

Now there are a range of other policies and programs that should be used to 

address the employment barriers of former offenders. These include the 

efforts of states to review statutory limits on felony offender employment, 

limiting recidivism [data] due to technical parole violations, re-entry 

programs, fatherhood programs and the like.

But I consider all of those efforts to be complements to the EEOC Guidance 

and it should not be viewed as a substitute for them.

ALFRED BLUMSTEIN, PROFESSOR OF URBAN SYSTEMS, CARNEGIE MELLON 

UNIVERSITY:

Thank you very much for the opportunity to report to you on some of the 

research that I've been doing over the past number of years.

It's clear that most public policy issues involve some complex trade-offs, often 

between one set of private interests and another set of public interests. And 

there's an issue that's involved here in terms of the use of background check 

information in an environment where, number one, the prevalence of positive 

background events, criminal events, is not at all appreciated.

And second, because of the difficulty of understanding where the risks are at 

any particular point. The research I want to talk about is research that 

Professor Kiminori Nakamura and I started about five/six years ago in 

recognition of the fact that many people had some minor infraction, a crime, 

particularly when they were young and stupid. Then, twenty or thirty years 

later, they still can't get a job because of that record in their background.

And it's that situation that impelled the research, and that links to the issue of 

the timeliness in the EEOC Regulations, the timeliness that says if somebody 
Criminal Background Checks and the EEOC’s Conviction Records Policy 23

did something stupid when he was young, that should not hang over him for 

the rest of his life.

So it's clear that there is tension between those who feel that all information 

should be available to an employer so that the employer can make whatever 

wise decision he chooses to make, on one hand, and the opportunity to limit 

the collateral consequences of that event.

We started the research with 88,000 criminal-history records from of firsttime arrestees in New York State. We then dove down to those who were 

convicted. We then looked at the risk of a new event as a function of the time 

clean since that first event in 1980. It turns out that very shortly after that first 

crime, there's a reasonably high risk of recidivism, of committing a new 

crime, shortly after that event.

But that risk declines. And so our challenge was finding the nature of that 

decline and when it got low enough to be considered negligible. One measure 

of low enough was when it became less than that of the general population

[including ex-offenders] of the same age. The second measure was when it got 

close enough to the risk of non-offenders (people who had no prior records).

And so that was the basis for doing the analysis. We had full criminal records 

and so we could see the nature of the declining risk. It turns out that most 

recidivism occurs within the first three years after a previous event, so that the 

risk falls off rather sharply after that. It gets down below ten percent after that.

It becomes less than the general population that includes both ex-offenders 

and non-offenders89 within four to seven years, and somewhat longer if the 

comparison is exclusively to those with no prior records.90

One might challenge the contemporary usefulness of what happened in New 

York in 1980. So we got similar first-arrestees data from New York in 1985 

and 1990. We also went to Florida and Illinois and that enabled us to test the 

robustness of our findings over time and state. And there was a reasonable 

amount of variation over those first five years.

But after that, the pattern becomes much closer, because we're now dealing 

with a population that avoided the high risk of recidivism in those first few 

years.

 89 Dr. Blumstein uses the category “general population” to include both ex-offenders and non-offenders. 90 By contrast, Dr. Blumstein’s research indicates that the point at which ex-offenders and non-offenders’ risk 

begins to converge is over 20 years. See Alfred Blumstein& Kiminori Nakamura, Redemption in the Presence 

of Widespread Criminal Background Checks, 47 CRIMINOLOGY & PUB. POL’Y 327, No. 2 (2009). As noted 

previously in this report, Dr. Blumstein was an expert witness in El v. SEPTA, where the court cited as 

dispositive his testimony on behalf of the transit authority (SEPTA) that former offenders’ risk of re-offending 

diminishes over time but never equals or falls below the risk for those who have no prior violent history. 479 

F.3d 232, 246 (3d Cir. 2007).
24 Introduction and Background

Our first analyses were re-arrests for any crime type. We then wanted to look 

at re-arrests for crime types to which employers might be particularly 

sensitive. So we looked at violent crime type or property crime type. And 

those were quite different.

So that we now have the basis for sorting out what we call the redemption 

time, which is when they get below the general population or close enough 

within some small risk-tolerance of the people who have no records.

And we found that of these 88,000 people, 40 percent had no subsequent 

arrests in New York. It was their first and only arrest. Now about ten of those 

40 percent had an arrest in another state, so that we were able to adjust our 

estimates of redemption times, times when the risk was low enough, to 

account for that variation.

We looked at individuals who were convicted, but I can tell you that the risk 

pattern of those who were convicted compared to those who were merely 

arrested was not very much different. You have a much smaller population, 

but conviction is usually attributable not to innocence but something 

associated with evidentiary possibility.

One particular target that I think we want to talk about is the wide variety of 

the forever rules that are present in statute and in corporate policies. If you 

have ever done X, you cannot be hired. And that totally precludes the 

possibility of redemption, the possibility of people surviving what they did 

wrong.

And arrest ubiquity is a particularly important issue. There have been recent 

estimates of arrest prevalence. We made an estimate about 40 years ago that 

the chance that a male would be arrested some time in his life was 50 percent. 

We were sure that there was an arithmetic error, missed the decimal point. 

That estimate is now higher because we hardly had arrests for drugs or 

domestic violence then. So the ubiquity of arrest is an important consideration 

in terms of what employers view to be meaningful.

JEFFREY SEDGWICK, CO-FOUNDER, KESWICK ADVISORS:

I want to start by asking you to think about three numbers: 11,521, 7,739 and 

4,685. The significance in these numbers is there are 11,521 published articles 

on criminal careers, many of them done by my colleague here, Al Blumstein.

There are 7,739 published articles on predicting crime or criminality. And 

there are 4,685 published articles on recidivism. These are crucial topics in 

understanding the risks involved in hiring those with, or even without, 

criminal histories; because, indeed, people who have no criminal history still 

have a risk of committing an offense.
Criminal Background Checks and the EEOC’s Conviction Records Policy 25

The question I would ask you is, does the updated EEOC Guidance reflect an 

awareness or a nuanced understanding of this available body of knowledge? 

Also, does the EEOC updated guidance reflect awareness or nuanced 

understanding of the multiple factors that contribute to problems encountered 

by ex-offenders in the job market?

I'm referring here to such factors as substance abuse or dependency, poor job 

skills and employment history, and difficulties with inter-personal 

relationships. Does the updated guidance address these issues in a constructive 

manner, or acknowledge their presence in order to enhance employment 

prospects for the ex-offender in aiding successful re-entry -- a goal that we all 

share?

Does the updated EEOC Guidance reflect awareness of or a nuanced 

understanding of the available body of social science research on statistical 

discrimination and the benefits of criminal history background checks 

Professor Holzer spoke to so eloquently and his research documents quite 

concisely?

Does the Guidance reflect an understanding that background checks do not 

inhibit positive employment outcomes across the board? And they in fact, as 

he noted, actually lead to an overall improvement in minority hiring.

Also, does the EEOC Guidance reflect an awareness or nuanced 

understanding of research by scholars such as Devah Pager, who's done some 

very good work identifying the actual sequencing of events that leads to the 

way in which the presence or absence of a criminal event in one's background 

affects one's employment prospects?

Does the updated EEOC Guidance reflect awareness or nuanced 

understanding of the available body of social science research on redemption 

that Professor Blumstein has been working on so diligently these years 

including the limitations of it, its preliminary status, its potential for informing 

employer assessment of job applicants, but also its unsuitability for guiding an 

administrative or regulatory bright line or uniform guidance?

Does the EEOC updated Guidance reflect awareness or nuanced 

understanding of the way in which employers use criminal history background 

checks? SHRM [Society for Human Resource Management] has provided a 

great deal of survey information on how and why employers use background 

check information.

Oddly, in many cases, employers demonstrate what seems to me to be a quite 

sophisticated understanding of how to use this information; and, in fact, they 

seem to be using it in ways that, quite frankly, the EEOC Guidance doesn't.
26 Introduction and Background

And finally, does the updated EEOC Guidance reflect awareness or nuanced

understanding of the insubstantial foundation of disparate impact and social

frameworks as justification for adverse action by EEOC? In my written

statement, I noted a very long tradition and body of research on the disparate

prevalence of criminal records in the United States, some of which was done

by Professor Blumstein and by other scholars such as Hindelang, Langan, and

Sampson and Lauritsen, concluding that the disparate impact of criminal

records reflects differential involvement in imprisonable or arrestable crimes,

not discriminatory treatment of protected classes.

It also seems to me interesting that the EEOC Guidance fails to recognize,

engage and respond to some of the questions that Professor Amy Wax asks

about disparate impact analysis, particularly looking at the Griggs Decision

and the standard in the Griggs Decision, and the way in which continuing

social science research has undermined the foundations of the court standard

in the Griggs case.91

And, finally, again, I'd ask whether or not the EEOC Guidance takes account

of the work of Professor John Monahan92 at the University of Virginia Law

School that was mentioned in the Dukes v. Wal-Mart case, questioning the use

of social frameworks like disparate impact analysis in a litigation affecting

racial discrimination.

As you can tell by the questions that I've asked, my primary interest is that I

want to see social science research used. The scholars that we have here have

done some excellent work. What concerns me is that I don't see that work, or

an understanding of that work, reflected in a sophisticated and nuanced sort of

way in the EEOC Guidance.

And I would hope we all share an agreement that we have 2.2 million

incarcerated people in the United States; 95 percent of them are coming back

to their communities. We have a vested interest in making sure they come

back prepared to succeed in their re-entry into legitimate society.

My concern is I don't see social science, and what it has to offer to that

challenge, being used appropriately, or used in a sufficiently sophisticated sort

of way, in the EEOC Guidance.

91 Amy Wax, The Dead End of "Disparate Impact," 12 National Affairs 53-69 (2012) available at

http://www.nationalaffairs.com/publications/detail/the-dead-end-of-disparate-impact. 92 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2554 n.8 (2011); John A. Monahan, Contextual Evidence of

Gender Discrimination: The Ascendance of "Social Frameworks, 94 Virginia L. Rev. 1715 (2008) available at

http://www.virginialawreview.org/content/pdfs/94/1715.pdf.
Criminal Background Checks and the EEOC’s Conviction Records Policy 27

QUESTIONS BY COMMISSIONERS OF PANEL ONE SPEAKERS

COMMISSIONER KIRSANOW:

I live in inner city Cleveland and see the profound effects of failure of re-entry 

into the workplace of ex-offenders. We have a lot of people who probably 

could contribute to society but can’t because of the problem of failure of reentry. The problem of criminality is exacerbated and with all the downstream 

effects talked about by Mr. Blumstein.

However, I also have profound concerns about this particular guidance from a 

number of perspectives. One is that I don't see any safe harbors in the 

Guidance whatsoever. If there's a negligent-hire lawsuit brought, what does an 

employer do?

Number two, I understand the EEOC has said that this supersedes state laws to 

the contrary. So if you’ve got state laws out there that say you've got to have 

criminal background checks for certain industries, you comply with it in good 

faith. And then you get slapped with a disparate impact lawsuit.

That brings me to number three. I don't see a judicious application of disparate 

impact theory in this particular case. That is a subject for a whole different 

hearing on its constitutionality.

But I guess most importantly here is I know the EEOC maintains that this is 

not burdensome or complicated, which would be a surprise to a lot of small 

employers that are represented here. It's not complicated to me, necessarily; I 

have practiced in this area for 35 years. But to a mom and pop corporation or

company -- they don't know what to do with this thing. They do think it's 

ambiguous. They suspect it's [deliberately] ambiguous so that there can be a 

more expansive application of this particular policy.

One of the questions I have is addressed to Ms. Miaskoff: What evidence, if 

any, did the EEOC adduce during the hearing process to address whether or 

not this was going to be burdensome or complicated to smaller employers, or 

any employers whatsoever?

MS. MIASKOFF: 

We heard during the hearing process and through written comments that the 

basic factors that we have enunciated here were familiar to employers, and 

indeed that a lot of employers already were following a process whereby they 

would look at the basics, which are the three factors, and often, would give an 

opportunity to an individual to explain the situation. And in fact I think there 

is something in a recent SHRM [Society for Human Resource Management] 

publication that also asserts that fact. So we got feedback that indeed a lot of 
28 Introduction and Background

employers already, almost on a common sense level, were following some of 

these processes.

COMMISSIONER KLADNEY: 

I know you've said it twice already but a number of our panelists, not 

necessarily on this panel, but panels to follow, have indicated that the EEOC 

Guidance prohibits employers in some fashion from doing criminal 

background checks. That's not the case, right? I mean I'm just asking you to 

absolutely state that again.

MS. MIASKOFF: 

N-O. No. It does not prohibit criminal background checks.

COMMISSIONER KLADNEY:

Right. I mean they say that quite a bit. And so based on what you said about 

the guidance, if an employer is running a business in which employees spend 

a lot of time one-on-one with customers or other employees, and you receive 

an application from someone who has a criminal background that reveals the 

person was convicted of a violent crime, a crime against a person, and was 

only recently released from prison, using the Green factors an employer could 

safely tell that applicant, I'm sorry, you're not employable at my place of 

business, is that correct?

MS. MIASKOFF: 

Yes, that's correct.

COMMISSIONER KLADNEY:

I mean you would balance the application and the Green factors with regard to

risk. I mean, it's not rocket science?

MS. MIASKOFF: 

No, I don't see it as rocket science. The Green factors I think were discussed 

in the later decision in El v. SEPTA, and there the court came out and said that 

really what we're talking about is assessing risk. And what the Green factors 

do is they give a common-sense way to do that: What's the crime? How long 

ago did it happen? What's the job?

COMMISSIONER KLADNEY: 

Dr. Blumstein, that's exactly what you talked about in your article isn't it?
Criminal Background Checks and the EEOC’s Conviction Records Policy 29

DR. BLUMSTEIN: 

Very much so, specifically focusing on the duration issue. We didn't try in any 

way to assess the applicability of a prior crime to the employer's needs. That is 

clearly relevant. But ours was specifically recognizing that lots of people get 

held off from employment for a long time, without any empirical basis for 

knowing when long enough had occurred, that this individual should no 

longer be seen as a threat.

COMMISSIONER GAZIANO: 

My day job is at the Heritage Foundation where I help direct a legal center. 

My colleague, Ed Meese, has helped me appreciate the importance of re-entry 

programs that help former prisoners. This has been a great interest to me for a 

number of years.

But the overuse of disparate impact analysis under Title VII is a very 

complicated and tricky way to get at this problem. The Federal Government, 

state governments, and private individuals can do a lot more I think to help 

prisoner reentry. But this is an area where being heavy handed with a

disparate impact approach may backfire. There is some literature that suggests 

that employers are discouraged -- even if they go through some hoops when

considering criminal background checks -- by the threat of a private or EEOC 

litigation that will subject them to liability. So instead of employing more of 

some minorities that the guideline is supposed to help, they'll employ fewer.

And my question I think is to Mr. Livingston. The EEOC could have gone two 

ways with the disparate impact guidance under the Title VII. First of all I 

certainly agree they have no authority to issue regulations. So the guidance in 

the guise of interpretive regulations is questionable to me.

But the other is to try to interpret the disparate impact approach in a way that 

lessens the constitutional risk of requiring disparate treatment that violates the 

Equal Protection Clause.

The first way expands their power to the almost maximum extent possible. 

And that's generally the bureaucratic temptation -- to aggrandize power, to 

increase leverage, to increase agency staff. Have you studied the constitutional 

implications of using non-regulatory guidance that allows the EEOC to

eliminate any disparate impact and potentially crosses the threshold into 

unconstitutional territory?

MR. LIVINGSTON: 

That's a big question. What we do know is, for example, in a lawsuit that 

EEOC has filed alleging disparate impact, that the EEOC is asserting that 
30 Introduction and Background

men, white men, black men, Hispanic men, are entitled to a remedy when 

they're denied employment because of a criminal conviction, but that white 

women are not. And that does raise some questions about whether the statute 

is being applied in a way which is consistent with the requirements of the 

Equal Protection Clause.

I’ll give you a different sort of answer. And it deals with the Green case, and 

the Green factors, and the discussion about, “well nothing has really changed; 

the Green factors are common sense factors that employers ought to take into 

account when they make hiring decisions.”

A great deal has changed in the EEOC's new policy guidance with respect to 

application of the Green factors. The Green factors, according to the Third 

Circuit Court of Appeals in a recent case, El v. SEPTA, do not require 

individualized assessments: the employer can look at particular crimes and

particular jobs and form bright line rules.

For example, a policy that states, “we won't hire someone who has been 

convicted of theft for a cashier position if the conviction occurred within the 

last five years” takes into account the nature of the job, the nature of the 

offense, and when the offense occurred. These are bright-line factors.

The EEOC has rejected that and is requiring employers to look at each person 

who committed a theft individually. And that requires subjective, 

individualized assessments of the type that employers have been trying to 

work out of their hiring systems for years, out of concerns that when hiring 

managers treat similarly situated persons differently, minorities may be 

disadvantaged and create disparate treatment litigation risk for employment 

resulting from the exclusion of women and minorities from positions.

So I'd say that the new policy Guidance, by requiring individualized 

assessments and preventing employers from establishing bright line rules that 

would treat similarly situated persons the same, has an unintended 

consequence which is opposite from what is intended by the EEOC's policy.

MS. MIASKOFF: 

The Guidance does not require individualized assessment. Period. Indeed, Mr. 

Livingston has been telling you how we don't have rulemaking authority, so 

we can't require it. But we don't require it in the Guidance.

What we do is say is that it is at times an important supplement to the Green 

factors. And the Guidance does say that there will be situations in which a 
Criminal Background Checks and the EEOC’s Conviction Records Policy 31

bright line rule without the individualized assessment will be fine under Title

VII.93

COMMISSIONER ACHTENBERG:

Dr. Holzer, you state in your testimony that the EEOC Guidance should be

viewed as one of several potentially effective legal and policy efforts to

reduce the barriers to employment among men, I would imagine as well as

women, with criminal records. And it thereby improves their employment

outcomes.

You also stated that in your view the EEOC Guidance does not seek to

discourage employers in any way from doing background checks of

applicants. That seems to be in stark distinction from the critique offered by

Mr. Sedgwick and I'm wondering if he would comment on the acuity of my

observation to that effect.

DR. HOLZER:

Well, Mr. Sedgwick and I agree that it's important to use social science

research, and I appreciate the plug you made for that.

I very, very strongly disagree with Mr. Sedgwick's reading of that evidence.

And I read over his testimony several times and I was, frankly, quite troubled

by some of the logical leaps that Mr. Sedgwick makes, some of the inferences

he draws.

Mr. Sedgwick, for instance, mentioned a paper by Devah Pager and Bruce

Western. And then he infers exactly the opposite from that paper of what the

paper really shows and what the authors clearly believe. And then he attacks

the EEOC for not citing that paper and accuses them essentially of dishonesty

in his written statement, which I found quite amazing.

In many, many other places Mr. Sedgwick reviews the evidence Al Blumstein

has now generated in a body of work on how duration affects the probability

of re-arrest. There are other papers in the body of research. There are several

papers by the trio of Kurlychek, Brame, and Bushway.94 Mr. Sedgwick cites

just one paper, though there are several of them. All of the papers except that

one Mr. Sedgwick cites in fact find after some number of years there is no

remaining difference in the probability of re-arrest.

93 But see note 18 above (citing 2012 Guidance at 14). 94http://reentrypolicy.org/publications/scarlet_letters_recidivism_does_old_criminal_record_predict_future_offe

nding/ScarletLetters.pdf
32 Introduction and Background

Separate from the whole issue of the re-arrest are the issues of for what crime 

and did a conviction occur. So I have a very strong disagreement with Mr. 

Sedgwick on how this research should be read.

I'm not a lawyer and I won't pretend to be. And one might have qualms about 

the EEOC from legal grounds. Commissioner Kirsanow mentioned some of 

those qualms and I'm not prepared to comment on that. When I read the 

document from my vantage point as an economist and social scientist, it 

seemed to me to be a relatively sensible application of the Green factors plus 

other individual factors, which this literature shows do matter -- like having 

completed an employment training program that dramatically reduces the 

likelihood of re-offense.

I don't think this imposes an enormous burden on small businesses to check 

into these kinds of personal backgrounds. I mean, they're readily available if 

people choose to look at them. And we know that there are many employers, 

small and medium size especially, that have blanket refusals to hire people 

with a felony conviction who don't look at the Green factors.

Now they may not state that publicly, but I found thousands of these 

employers early in my career. And many of them simply say that, they will 

not hire anyone with a felony conviction.

Given that, none of us are arguing about the Green factors, we all seem to 

agree on those. It just seems to me that trying to clarify the issues that should 

be taken into account is a potential positive, though again I'll leave legal 

qualms to other people.

And the other thing I'll say is the status quo does enormous social and 

economic damage, not only to these individuals but to their families and their 

communities and the American economy. The risks that we're now 

considering imposing on employers are hypothetical and do not seem to me to 

be very high.

So an honest assessment, an accurate assessment of all of the costs and all the 

benefits certainly leads me to believe that if we're erring in a certain direction 

right now we're erring too much in the direction of keeping these men and 

women from employment and that maybe we should at least reconsider some 

of these factors.

COMMISSIONER KLADNEY: 

What I'd like to ask you is based on the thousands of people you surveyed 

early in your career. I think that's when you got most of the information for 

the article that you're here for. And one of your co-authors, Stolz, wrote a 

subsequent article using a lot of that same information. And I was struck by 
Criminal Background Checks and the EEOC’s Conviction Records Policy 33

when they said that people who don't do criminal background checks, 

employers who don't do criminal background checks, hire white ex-offenders 

at a higher rate than people of color. Do you recall that in Stolz's article?

DR. HOLZER:

I do recall that. I believe he is actually citing a result from Devah Pager's 

doctoral dissertation, which is distinct from the piece Mr. Sedgwick cited. 

And what that shows is that race per se plays a very important factor in these 

hiring decisions. Criminal records also play an important factor in these hiring 

decisions.

Mr. Sedgwick tries to argue that these papers show that's really race and not 

criminal records. I don't read the evidence at all that way, because both of 

them matter. It's certainly possible for multiple factors to be important in 

determining the outcomes we care about and this one of those cases.

So yes, race matters. White men who have criminal records seem to either 

have comparable, or slightly higher, or slightly lower -- depending on the 

study -- odds of being hired than a black man without a criminal record. But 

when you look at all of the data, all of the evidence, it's clear that both of them 

matter very importantly and interact in important ways.

COMMISSIONER KLADNEY: 

Dr. Blumstein, Mr. Sedgwick said that you cited a statistic saying that 80 

percent of people recidivate after their first conviction. Does that go down 

with time -- I mean that's basically what we're talking about.

DR. BLUMSTEIN: 

In our study 40 percent did not recidivate at all. So that 60 percent did. So 

recidivism is widespread. But it's widespread for a wide variety of crimes, 

many of which are of minor concern to an employer or otherwise.

But from a research-strength viewpoint we chose to take this cohort of firsttime arrestees in 1980 and follow them through. We then tracked how many 

of them had out of state arrests. Of those who had no further arrests in New 

York we tracked those who had out of state arrests, and so we were able to 

find those.

But recidivism is reasonably high. And recognize we took people who we 

thought had no prior record in New York. And even among them recidivism 

was high. And then, obviously, offending is going to be high among lots of 

people who never had a prior record, because we're all at risk in the criminal 

justice system for our own future misbehaviors as well.
34 Introduction and Background

So 80 percent recidivating sounds high and the studies of people released from 

prison, according to the Bureau of Justice Statistics, said that about two-thirds 

get re-arrested for something whereas half of them went back to prison. That 

means one-third didn't get re-arrested, at least in the five years they tracked 

them.

So that the recidivism studies are fairly consistent but people look at different 

measures of recidivism in different ways. The police will look at re-arrest 

whereas the corrections people look at re-incarceration. And those two may be 

totally consistent, but they will then argue about whether it's two-thirds or 50 

percent.

COMMISSIONER KLADNEY: 

Mr. Sedgwick, would you agree that the passage of time reduces the 

propensity to recidivate?

DR. SEDGWICK: 

Oh absolutely. Oh, that's a well-known fact in social science that there is an 

age/crime curve. As people get older the likelihood of their committing a 

crime declines.

COMMISSIONER KLADNEY: 

So it would be important for employers to look at that?

DR. SEDGWICK:

Absolutely. One other thing that I think is an important point is that the 

research that Al [Blumstein] has done on redemption so far is for first-time 

arrestees.

His next wave of research is going to look at redemption times for people who 

have multiple prior offenses. It will be interesting to see whether those 

redemption times are longer or shorter. So one of the things here that I 

appreciate in Al's research on redemption is that it fits nicely with a body of 

literature on criminal careers that I think is very interesting and ought to be 

taken account of by employers. This research looks at what the markers are at

the beginning (meaning first offense) to indicate a criminal career that's going 

to be long and relatively intense -- what the markers are of a criminal career 

that's going to be serious as opposed to not very serious. 

I remember back in 1984 when I was the deputy director of the Bureau of 

Justice Statistics (BJS), we were testing the FBI's system for keeping and 

making accessible records. So we asked the FBI to run us the longest rap sheet 
Criminal Background Checks and the EEOC’s Conviction Records Policy 35

they had, just to see what it was. It turned out it was a young man who was a 

turnstile jumper in New York City, right? So, okay, there would be an 

example of someone who has a very high-volume criminal history for a trivial 

offense.

So I guess the bottom line that I would stress with the redemption research is 

it strikes me as valuable. But it's much more valuable for an employer in terms 

of assessing the risk of a particular individual in the context of a variety of 

other personal and familial and social characteristics than it is to be cited by 

EEOC in order to form an enforceable standard for how long a window of 

elapsed time since the last offense an employer should have.

COMMISSIONER KLADNEY: 

The EEOC doesn't do that in their guidance, obviously.

MS. MIASKOFF: 

Correct.

DR. SEDGWICK: 

Although they keep citing, “well, it could be four to seven years.” And Al

[Blumstein] in his New York Times opinion essay in January said, “well, it's 

ten to 13.”

DR. BLUMSTEIN: 

That's the harsher standard.

DR. SEDGWICK: 

True. Although I wouldn't call it harsher, because in a sense you're saying 

there's two standards. One standard is: When does the risk of hiring this 

individual, given the time elapsed from his last offense, match the general 

population of the same age (including ex-offenders)?95

DR. BLUMSTEIN: 

Drop below.

 95 The other standard, presumably of more importance to employers, is when the risk of hiring an individual 

with a record matches the risk of hiring someone who has never been convicted of a felony.
36 Introduction and Background

COMMISSIONER KLADNEY: 

That's not what he says.

DR. BLUMSTEIN: 

Dropped below.

DR. SEDGWICK: 

Okay. All right, so it equals or falls below?

DR. BLUMSTEIN: 

Yes.

COMMISSIONER HERIOT:

Ms. Miaskoff: Mr. Livingston said something that I thought was interesting, 

which is that a rule that discourages reference to criminal backgrounds can 

have a disparate impact on females. And we could draw that out and say that it 

has a disparate impact on elderly Asian females if you like.

And that makes me wonder, given that lots of things have disparate impact, 

how does the EEOC prioritize the disparate impact issues that are out there? I 

guess maybe what I'm leading to here is the idea that Title VII requires you to 

take some special interest in the interest of African Americans or is what's 

really driving this an interest in ex-offenders generally? I mean, is race driving 

this or something else driving this? And if race is driving this policy then how 

do you prioritize which disparate issues are going to get the EEOC's attention?

MS. MIASKOFF: 

Two points in response: Your question is about prioritizing, which does 

acknowledge that the disparate impact provision in Title VII now prohibits 

disparate impact on any of the protected bases listed in the statute. So that 

includes all of the different qualities you just spoke of.

That said, when the EEOC does policy we look at the research that these 

gentlemen have been talking about. We look at the data. And the data that 

would overlap in terms of race and criminal records is both, I guess, 

voluminous and stark and so that drove our focus.

COMMISSIONER HERIOT: 

It runs both ways. [Protecting against disparate impact on elderly Asian 
Criminal Background Checks and the EEOC’s Conviction Records Policy 37

females may mean interfering with protecting black job applicants against 

disparate impact] if employers who wish to use criminal background aren't 

able to. So is this really a Title VII issue or is this an issue where you're 

concerned about criminal background as an issue by itself and the notion of 

integrating ex-offenders into the economy? Or is this a special concern that 

the EEOC thinks Title VII requires for African Americans or Hispanics [but 

not other protected groups]. What's going on here?

MS. MIASKOFF: 

Title VII is not an affirmative action statute. So let's get that off the table. 

COMMISSIONER HERIOT: 

What do you mean it's not an affirmative action statute?

MS. MIASKOFF: 

It doesn't require special consideration of race, I think with some of the 

terminology we're using. So I wanted to step back from that. I think as some 

people on the panel were saying, because we all have gender, we all have 

race, we all have national origin, et cetera. Religion, some of us have.

Everyone, as you said, can be protected by Title VII. In making the decisions 

about what to do policy on, we are not denying anyone their rights. We are, as 

a national agency, we are trying to focus on issues which have a big impact on 

American society, recognizing, yes, that it's very complicated and that 

technically everyone is protected by this law. I am, you are, we all are.

So we recognize that, but we look at the national issues, based on the research.

COMMISSIONER HERIOT: 

What do you mean by the national issues? I mean, again, if it's true that 

elderly Asian females are worse off under guidance, why does it work in one 

direction and not the other?

MS. MIASKOFF: 

I'm not saying it doesn't work. An elderly Asian woman could go forward and 

bring a case to court if she so decided to do so under Title VII. What I am 

saying is that the EEOC has to choose where to invest its resources to do a 

policy statement. We obviously watch the research and therefore issues such 

as the overlap of race and criminal exclusions that we're discussing here today 

have been documented to be a major issue in the American society.
38 Introduction and Background

COMMISSIONER HERIOT: 

In the sense that it has a disparate impact on particular groups. But there are 

always mirror images --

MS. MIASKOFF: 

I understand that.

COMMISSIONER HERIOT: 

Because then you're not answering the question.

MS. MIASKOFF: 

I guess I'm not sure. I'd ask you a question. How does one enforce Title VII 

then? If there's always a mirror image, which would stop one --

COMMISSIONER HERIOT: 

For intentional discrimination. That's an easy question.

MS. MIASKOFF: 

I'm sorry?

COMMISSIONER HERIOT: 

By looking for intentional discrimination.

MS. MIASKOFF: 

But Title VII itself includes disparate impact now as well as intentional 

discrimination. That is the law of the land now. 

COMMISSIONER HERIOT: 

Can you name something for me now that doesn't have disparate impact? Any 

job qualification that doesn't have disparate impact?

MS. MIASKOFF: 

Job qualification? Now a job qualification, by saying that you're implying that 

it is a rule or a policy that the employer is going to apply across the board. 

That is the kind of situation that raises disparate impact concerns. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 39

COMMISSIONER HERIOT: 

Is there any job qualification that you can think of that wouldn't have a 

disparate impact?

MS. MIASKOFF: 

Well I'm thinking out loud. And if you had an individualized job qualification, 

for example, I decided that I simply was not going to hire anyone who's 

shorter than five feet because I don't want to hurt my neck looking down. You 

know, a very individualized factor. That would not be impact. That would be 

treatment.

DR. HOLZER: 

I want to make two quick comments in response to Commissioner Heriot's 

question. I don't see anything in the EEOC guidance that requires the 

employer to hire the black man with the criminal record over the elderly Asian 

woman that doesn't. The guidance simply says be careful how you use the 

information about that applicant's history.

It does not require anyone to discriminate against the elderly Asian applicant. 

It simply says do not put undue emphasis on that one factor. So I don't see that 

it creates a disparate impact on anybody else.

COMMISSIONER HERIOT: 

In the end either you get the job or you don't get the job.

DR. HOLZER: 

It says do not use that one characteristic of the black male applicant without 

considering other factors. It does not require that he be hired or that there be 

any discrimination against the other applicant.

But I want to make a second point, again going back to the evidence. Every 

study that I'm aware of that's ever looked at this, finds that black men are at 

the end of the hiring queue of employers; that; that of all the demographic 

groups black men face very substantial discrimination. Every audit study, 

rigorous studies where they send out matched pairs of applicants, find that 

employers are reluctant to hire black men.

This is for many different reasons. Perhaps some legitimate, perhaps not. And 

we know that the fear of criminal records almost certainly is part of that. And 

again, the work done by Bruce Western and Devah Pager, our work and 

others, suggests that's an important part of that fear. I know of no body of 
40 Introduction and Background

evidence that says elderly women from Asia face substantial discrimination in 

this market.

So the evidence clearly suggests there is a large problem in this one area and 

not these other hypothetical examples. And the EEOC I believe has made an 

attempt correctly or incorrectly, to address these issues. But the notion that it 

requires discrimination against these other applicants -- I didn't see that 

anywhere in the document.

COMMISSIONER HERIOT: 

Ms. Miaskoff was nodding, I just want to establish, you were agreeing with 

him, right?

MS. MIASKOFF: 

Correct.

COMMISSIONER YAKI: 

Thank you very much. It strikes me there are sort of two things that I'm 

listening to here. One is, as referenced by the last interchange, there's this 

confusion about what this guidance really does. To me what the guidance does 

is it opens up the pool for everyone to jump in a little bit better than what's 

currently out there right now.

It lowers the bar for exclusions of people who formerly were sort of never 

allowed in to the hiring pool to begin with, I mean part of the problem that we 

have in this country for people who have a criminal background. And who 

predominately, in this case, are African American or Latino, so that they can't 

even get in the door to begin with to even get the interview.

I mean that to me is part of the big problem. As someone who worked on this 

in local government and understands how working with employers who came 

to me about this regulation or that regulation, part of the biggest hurdle was 

trying to educate them about the fact that there's something about giving 

someone the chance. But if you never even give them the chance to explain 

themselves in the first place by enacting a hard and fast rule about a criminal 

conviction, you never get that opportunity.

I mean am I right, Ms. Miaskoff, that in many ways this is about -- this isn't a 

hiring mandate as it is broadening the pool of prospects that employers should 

be able to choose from in many ways.
Criminal Background Checks and the EEOC’s Conviction Records Policy 41

MS. MIASKOFF: 

Well it's not a hiring mandate. And I think Dr. Holzer made that point clearly 

also. It is cautioning against discrimination.

COMMISSIONER YAKI: 

This to me, the irony of this discussion, being in Washington, D.C. is I think 

not lost on me. Because the underlying tone of what you've talked about Mr. 

Sedgwick, Mr. Blumstein and others has been redemption, about the idea that 

someone can experience the conversion on the road to Damascus, give up 

their life of whatever it was that they had before and become a productive 

citizen.

We have that model in San Francisco. It's called Delancey Street, where we 

have diversion of drug other hardcore offenders within mainstream back into 

normal life. And they create sort of their own record through this program to 

graduate into real work.

But nothing to me, what I don't understand from an employer's perspective 

and perhaps you can illuminate me on this, is why you would object to what is 

really, by its own nature, guidance. By its own nature it's not mandatory. It is 

a requirement, it is imposed by law by Congress for them to look into this. 

This is not something that they just invented on their own. This stems from a 

law enacted by Congress, signed into law by the first President Bush in 1991.

But we sit here and we talk about, I mean, there's something ironic about 

employers sitting here talking about how we have to have these requirements 

and this flexibility to do what we want to do. To screen out who we don't want 

to do, when we live in a city where you can break the laws of God and still be 

re-elected to national office.

I mean, where people who stray, do things all the time that are foolish, silly, 

arguably outside the law, even get convicted of it and still return to public life. 

It means all the time you, and others, are making judgments all the time about 

whether or not what someone did relates to what it is you want them to do.

And why you can't extend that in very possibility and every case, and in the 

interest of African Americans and Hispanics especially, that you give that 

person the same kind of benefit of the doubt in some ways to enter your work 

ranks is quite frankly puzzling to me. And when we get to the second panel 

what I'm going to ask is going to be even tougher on this particular question.

But to me, explain to me why. It goes back to the Bible, you know, those who 

are in glass houses should not throw stones. And for all of us, in all of our 

ranks, in all of our employment have someone who may have done stupid, 

something that they aren't proud of. Maybe they got caught, maybe they 
42 Introduction and Background

didn't. Maybe they had a friend who was a DA who got them off so they didn't 

have to do it. So it never appears.

A lot of these kids don't. They have a bad public defender who just wants to 

churn and burn a case. You know, plead it out, get it out, it's on their record. 

They don't have those kinds of benefits. So why isn't it logical and why 

doesn't it make sense for EEOC to say to you just can't say no. You've got to 

give everyone a second chance to prove themselves. And to do that you can't 

automatically bar them from entering your doors.

MR. LIVINGSTON: 

I'm happy to prove the adage that fools rush in where wise men fear to tread, 

by volunteering to answer your question.

The issue of employment for persons who come out of prison is a very 

significant issue that needs to be addressed in a very thoughtful way. And we 

can't have a society where if you commit a crime and go to jail you can never 

work. That's unacceptable to everybody in the room and should not happen in 

this country.

The question though is who decides what the rules will be? Will it be the 

people, through their elected representatives in Congress? Or will it be an 

agency, using discrimination laws, that is not answerable to the electorate?

And so it's not a question of whether the rules are good.

COMMISSIONER YAKI:

But you set up an immediate bifurcation which I don't understand. These laws 

were enacted by people elected to a body, delegated those authorities to that 

body. That body is responsible and there is oversight done by both Executive 

and Legislative Branches on it. 

MR. LIVINGSTON: 

Well there you go. You just answered my question. This body was delegated 

authority for that body. We have a Congress and they should deal with this 

issue in a very thoughtful way, with input and opportunities for people to 

express their opinions.

The EEOC Guidance was issued without the opportunity to comment. And 

then the rest of us are told that these will be the rules the EEOC will follow 

and it flows right back to the conversation that you just heard. Is EEOC using 

this as an opportunity to step into a space where Congress won't act and 
Criminal Background Checks and the EEOC’s Conviction Records Policy 43

generally try to formulate rules that will apply to everybody? Or is it 

enforcing discrimination laws?

And to tell you the truth I don't know which it is. So EEOC policy guidance 

says that the use of criminal records by employers will result in disparate 

impact on Hispanics and blacks. But, the EEOC has a lawsuit pending where 

EEOC is alleging that it discriminates against men, including white men, and 

that's the claim the EEOC is pursuing.

So I'm not arguing with you about whether there should be rules or whether 

we ought to be more thoughtful in the way we address this issue of jobs for 

persons with criminal convictions. We should, I agree. It's whether EEOC is 

the agency that should be doing that.

COMMISSIONER KIRSANOW: 

One quick observation: I keep hearing that this is only guidance, but when 

you're on the receiving end of an EEOC Guidance, that is the functional 

equivalence of a statute, if not a regulation.

And I keep hearing it's not a hiring mandate but in Ricci v. DiStefano, we saw 

how it transforms into a hiring mandate. When you're concerned that you may 

have liability on a disparate impact claim you may have to put a thumb on the 

scale in terms of disparate treatment. And that is not theoretical. That happens 

in practice all the time.

So again, that is another lack of a safe harbor, meaning there are now three 

safe harbors that aren't being provided. But this goes to the job relating and 

business necessity, I'm going to go back to the law. Under a disparate impact 

claim the employer must establish that the particular device, test, rule, or 

policy that is facially neutral is job related and consistent with business 

necessity.

I think it was Don Livingston who said that criminal convictions are a device 

test that are perhaps different from other devices or tests, as you have in 

Griggs v. Duke Power where you had this facially neutral requirement that 

you have a high school diploma or pass a certain test. That's not job related, or 

even consistent with business necessity.

Here you've got a criminal conviction that says that somebody was convicted 

of embezzlement so he should be barred from being a bank teller. Somebody 

was convicted of rape so he shouldn't be working in an assisted living center.

But it goes beyond that in terms of reliability, trustworthiness, it's an 

indication of a number of things that have been shown pursuant to possibly 

the highest standard we have in jurisprudence, and that is guilt beyond a 

reasonable doubt.
44 Introduction and Background

So to what extent is this actually consistent with disparate impact in terms of 

job necessity? And do we have any data that show whether or not those 

individuals who have criminal convictions perform worse or better than those 

who've been hired without criminal convictions? Because it seems to me that's 

what goes directly to the job necessity.

Are they qualified, do they perform the job without any kinds of problems? 

Are they there every single day? Do they perform as well as those without 

criminal convictions? That's the true inquiry here when it comes to the law.

MS. MIASKOFF: 

Well thank you for that question. And I actually couldn't agree with you more, 

that is the data that we need. And we would love it.

COMMISSIONER KIRSANOW: 

Hold it, hold it -- data that we need? We don't have this and yet we're issuing 

guidances? I'm astonished by this. We don't have data that goes to the exact 

issue here. We don't have any data on this? Is that what people are telling me?

MS. MIASKOFF: 

What I'm saying to you is, that is why in the Commission's Guidance you see 

two factors. The first factor, for job relatedness, is the uniform guidelines on 

employee selection procedures. Ideally the kind of data that would be 

meaningful for that pool would be studies that used a criminal record and 

correlated that with subsequent workplace behaviors.

We did a lot of research. We found one study to that effect. Therefore, that is 

why the courts have turned to working with the basic framework that Green 

court set out in the 70s. Now I think it's also a very important question that 

you raise.

That yes, the original disparate impact, the Supreme Court cases, they deal 

with job qualifications, like high school diploma, like scores on a skills test, et 

cetera. And clearly having a criminal record or not is a different beast.

I think the Third Circuit in Philadelphia gave a very thoughtful opinion in El

[El v. SEPTA] where it really dove in and tackled the issues presented by that, 

which we're looking at for assessing risk in this situation, not necessarily 

determining someone's level of arithmetic or reading.

And, indeed, I think that that tension has been recognized throughout the 

development of the law in this area, and was very fully addressed by the Third 

Circuit. And indeed, that is the task that is pursued, I guess, by the second way 
Criminal Background Checks and the EEOC’s Conviction Records Policy 45

we talk about establishing job related consistent with business necessity:

Assessing the risk of the crime to the job. Looking at the time that has elapsed 

and looking at any other facts that can be enlightening.

COMMISSIONER YAKI: 

This is very important. I'd respectfully submit that risk is only one aspect to 

look at. You have to look at not just the risk, that's maybe what the EEOC is 

looking at because it's focused on the criminality of this. But it's also for the 

employer, is this guy going to be a good employee.

Panel Two Speakers

ROBERTA MEYERS, DIRECTOR OF LEGAL ACTION CENTER'S NATIONAL 

HELPING INDIVIDUALS WITH CRIMINAL RECORDS REENTER THROUGH 

EMPLOYMENT NETWORK, ALSO KNOWN AS H.I.R.E.

The Legal Action Center is the only non-profit law and policy organization 

whose sole mission is to fight discrimination against people with criminal 

records, histories of addiction or HIV and AIDS, and to advocate for sound 

public policies in these areas.

H.I.R.E., which is a project of the Legal Action Center, aims to increase the 

number and quality of job opportunities available to people with criminal 

records by changing public policies, employment practices and public 

opinion.

Since 2001 my project has provided leadership on public policy advocacy and 

technical assistance and training all across the country to private and public 

agencies on strategies to eliminate or reduce the number of criminal record 

barriers faced by job seekers in the labor market.

And just for the record, we've also been working with a number of states to 

create safe harbor protections for employers, which we know is a big issue.

As a proponent of the EEOC Guidance and Policy, and I think for other 

proponents that support it, I am not arguing for the elimination of background 

checks in hiring decisions. I'm a consumer, I'm a mother, I'm a granddaughter. 

I am arguing for logical and responsible policies and procedures that allow all 

qualified job seekers a fair opportunity to compete for jobs.

And I am arguing against the allowance of indiscriminate uses of criminal 

background checks and screening policies that overtly and covertly limit 

opportunities for people of color.
46 Introduction and Background

For the past decade we have used the EEOC Guidance as a policy model that 

states could adopt as a fair employment standard to give more qualified 

individuals with criminal histories a fair opportunity for employment and 

qualify for occupational licensing.

We have also used it to educate employers on the use of criminal records in 

hiring decisions. While conducting these educational activities over the years 

we have also worked with other legal and policy groups to encourage the 

EEOC to strengthen its position on employer's use of records, criminal record 

screenings, as well as urged them to become more rigorous in its investigation 

of criminal record-based claims of discrimination.

Therefore, we considered it a tremendous victory when the EEOC released 

this update of the Guidance it had released nearly 30 years ago that 

discouraged employers from establishing blanket bans against hiring people 

with arrest and conviction records.

The update of the EEOC Guidance includes provisions that we were really 

excited about that put employers on notice that categorical exclusions for 

people with certain arrest and conviction records may violate Title VII.

It emphasized the earlier recommendation that job applications not ask about 

criminal records. And if they do ask that they limit inquiries to conviction 

records for which exclusion would be job related with business necessity, 

offered a series of examples of common policies and practices that may 

violate Title VII and informed local and state governments that barring people 

with certain criminal records from jobs or occupational licenses could violate 

Title VII.

This issue has become of greatest importance because as the National 

Employment Law Project reported there are over 65 million individuals with 

criminal records in this country. Two, a criminal record is usually the number 

one automatic disqualifier for employment. And we know that many 

employers, public and private, will go as far as noting on job postings such a 

thing.

And we cannot ignore that criminal records serve as a double stigma for 

people of color. In 2006 H.I.R.E. partnered with the Center for Community 

Alternatives in New York to conduct a project that we called Unchaining Civil 

Rights, which identified, documented and described the institutional and 

structural exclusions in what we called the Four E's. Employment, education, 

enfranchisement and equality, and the ways that these exclusions result in de 

facto discrimination of racial minorities.
Criminal Background Checks and the EEOC’s Conviction Records Policy 47

We concluded that structural and institutional barriers to employment, 

education and enfranchisement for people with criminal records are more than 

collateral consequences. They are an abrogation of fundamental civil rights.

The release of Michelle Alexander's book in 2011, the New Jim Crow, 

catapulted this issue into mainstream media and has really forced the country 

to take note and acknowledge that people of color are significantly and 

disproportionately represented in the criminal justice system, and that a 

criminal record has become a surrogate for race-based discrimination.

Throughout the U.S., employment statistics for blacks and Latinos, 

particularly males, continue to be worse than for any other demographic.

The experimental audit studies of Devah Pager out of Princeton University 

encapsulate the real challenges faced by black and Latino males with or 

without criminal histories in the labor market.

In the last study she and Bruce Western conducted in 2004 in New York City 

they concluded that a black male without a criminal record was less likely to 

get a job than a white male with a criminal record. And my colleague Glenn 

here will talk a little bit more about that study.

Needless to say a black man with a criminal record barely stood a chance of 

getting a callback for a job. Race discrimination and race bias is pervasive in 

the job market and we have to attack it from every angle to which it exists.

We respectfully ask that the members of the Commission on Civil Rights 

consider supporting the EEOC's position on limiting the use of criminal 

background checks in employment decisions, as well as work with H.I.R.E. to 

promote criminal record barriers as civil and human rights issues as they are.

Here are a few additional thoughts. Few states, only 14, have laws prohibiting 

discrimination against individuals with criminal records in public and/or 

private employment and/or for occupational licensing. And as you know there 

is no federal law.

Therefore, we need federal enforcement agencies to commit to ensuring that 

qualified individuals with criminal histories are given a fair chance and 

opportunity to work and not face discrimination.

Most states give unfettered access to criminal record information indefinitely, 

which perpetuates the lifelong stigma suffered by millions of individuals with 

criminal records who are disproportionately people of color.

Until now, the employer community was not very concerned about being 

challenged on their discriminatory hiring practices because the threat of a 
48 Introduction and Background

criminal record-based, or even a race-based discrimination lawsuit, seemed 

more unlikely and remote than the negligent hiring liability suit.

Employers must continue to be encouraged to not consider arrests that did not 

result in a conviction as well as old or minor convictions that really cannot 

justifiably be considered relevant to the ability or the potential behavior of an 

applicant.

I have a series of other recommendations that's in my written testimony and I 

hope that you will consider them. 

GLENN E. MARTIN, VICE PRESIDENT OF DEVELOPMENT AND PUBLIC AFFAIRS 

AND DIRECTOR OF THE DAVID ROTHENBERG CENTER FOR PUBLIC POLICY AT 

THE FORTUNE SOCIETY

Thank you for holding this important briefing on the EEOC Reissuance of 

Arrest and Criminal Record Guidance, which was originally issued under the 

leadership of Clarence Thomas. I think personally, and my colleagues do, that 

the guidance is reasonable, fair and flexible. I'm pleased to see that it enjoyed 

bi-partisan support for its passage.

I represent an organization called the Fortune Society. We've been around for 

over 46 years serving people who have been involved in the criminal justice 

system, either helping them to reintegrate on the back-end, about 2,500 

people, or running alternatives to incarceration programs, keeping people out 

of jail and prison on the front end, meeting their needs in the community 

where it doesn't jeopardize public safety.

Some of the services we offer include an array of programs: education, 

employment (We place 600 people with criminal records in jobs each year), 

housing, drug and alcohol treatment, mental health services, and fatherhood 

initiatives. And we're an advocacy organization.

And I'd also like to mention that of our 185-person staff, half of them are 

people who have done time in prison. Half of them are people who have some 

sort of involvement in the criminal justice system, as is true for a third of our 

board, by way of our by-laws. It's very deliberate. We put value in the cultural 

competency that our staff, our professional staff, brings to the table.

It's also made us a bit of an expert on the hiring of people with criminal 

records. So much so that we worked with the Department of Justice to create a 

tool kit just two years ago, which was launched by the Attorney General Eric 

Holder, on how to successfully hire people who were formerly incarcerated 

and who also have the professional credentials to do the job.
Criminal Background Checks and the EEOC’s Conviction Records Policy 49

Today my written testimony focuses on the Devah Pager, Western Study 

because I served as the project manager on that study when I was the codirector of the National H.I.R.E. Network at the Legal Action Center.

As you might know, it was the largest audit study ever conducted in the 

United States. It was a replication of an original study that was done in 

Milwaukee, where the main criticism was that Milwaukee is not a very 

diverse labor market, hence the replication in New York, a much more diverse 

labor market.

And the major finding, which has been stated a number of times this morning, 

is that a white person with a criminal record just out of prison has a better 

chance of getting a job from an employer than their equally qualified black 

counterpart who has never been arrested.

And then when it looked at a black job seeker with a criminal record, his call 

backs were reduced another 50 percent. Very stark findings. The study was 

housed at the New York City Commission on Human Rights, one of the 

agencies in New York State which is charged with enforcing our antidiscrimination law, which I should say is over 40 years old. It applies to 

employers with ten or more employees, so that includes small Mom and Pop 

shops.

The New York law is much more prescriptive than the EEOC regulations. 

There are many more mechanisms for relief under our anti-discrimination law. 

And the bill was originally sponsored by a very conservative Republican in 

Long Island, New York.

Just before I came here I checked in with colleagues at the New York City 

Commission on Human Rights. Last year there were only 14 meritorious 

complaints filed by people with criminal records that they moved forward on.

So contrary to the rumor the sky is not falling as a result of having these sorts

of anti-discrimination laws on the books.

So I'd like for you to indulge me for a minute because I took the opportunity 

to read the testimony of some my colleagues on the way here on the train 

yesterday evening and I was somewhat disturbed by some of the things that I 

read, which is what encouraged me to deviate a bit from the presentation that 

was specifically about the study.

Maybe it's because I was involved as an advocate in helping the EEOC 

Guidance move forward. Maybe it's because I did six years in prison myself 

before I started doing this work 11 years ago. Maybe it's because I'm a black 

man. But definitely because I'm an American.
50 Introduction and Background

With all due respect to my fellow presenters, first, curtailing the legitimate use 

of background check is not my intention or the intention of the agency I work 

for. I think Pandora's box is wide open on background checks in the United 

States, we're not going to close it. I wouldn’t ask employers to stop using 

background checks where appropriate any more than I would say that credit 

card companies should stop using credit checks to make decisions about who 

should get a credit card.

I do have issues with the accuracy, how the information is used and if the 

subject has an opportunity to respond to what's contained in the background 

check. But when I was at the National H.I.R.E. Network we worked with the 

National Association for Professional Background Screeners eight years ago.

And we agreed that there was need for additional rigor, we agreed, we both

acknowledged that the field needed to respond or that somewhere down the 

line there may be a strengthening of the Fair Credit Reporting Act.

At the Fortune Society, where we hire a number of people with criminal 

records, we do background checks on all qualified applicants to make 

decisions because we have legitimate liability concerns ourselves.

So the background check company response to the new EEOC Guidance was 

a bit surprising to me. These agencies are conduits of information, as they 

should be, not necessarily experts in the interpretation of civil law and surely 

not suggesting that Title VII applies to them.

Secondly, the argument that Black and Latinos have a predisposition for being 

criminals is just categorically false, not supported by evidence and 

irresponsible. I look no further than the Bureau of Justice Statistics, crime 

statistics.

Thirdly, some of the research findings suggest that the expansion of the 

utilization of background checks can have a positive effect for black men 

without criminal records. That obviously is in response to employer liability 

and legitimate, and sometimes not so legitimate liability concerns, but we all 

know at this point criminal record-based discrimination easily serves as a 

surrogate for race-based discrimination. Whether it's intentional, deliberate or 

unintentional.

So the idea of winnowing out black applicants, which some of the other 

presenters are going to suggest, to find the good black applicants from the bad 

black applicants feels very un-American to me, especially when I think back 

to the 2004 State of the Union Address where it was President Bush who 

suggested that when the gates of the prison open we need to give people a 

second chance and that it should be a road to a better life. And how do you get 

a better life if you don't have access to the labor market?
Criminal Background Checks and the EEOC’s Conviction Records Policy 51

Finally, I have one other thing to say. In response to this concept that we need 

to be doing more background checks to winnow people out, surely allowing 

more disparate impact discrimination to reduce disparate treatment 

discrimination, where Title VII makes both illegal, is not something we 

should be doing.

We should be moving forward full throttle in the enforcement of the 

prohibitions on both. Anything less than that would be an assault on the rule 

of law.

And finally, if we listen to some of the testimony that will be presented here 

today, I myself would probably not be sitting here in front of you. I myself 

would probably have been categorically excluded from the $16,000 job I first 

took 11 years ago. Yet today I run a $20 million agency, I'm in charge of 

fund-raising, communications and advocacy.

I hire a number of people who have been involved in the criminal justice 

system. I hire a number of people who have not been involved in the criminal 

justice system. But anything that categorically denies people a job opportunity 

based solely on their criminal record would have had a huge impact on me.

And again, I would hate to think of where I would be sitting as opposed to 

sitting here today. 

LUCIA BONE, FOUNDER OF SUE WEAVER C.A.U.S.E.:

It's a great privilege to appear before the United States Commission on Civil 

Rights in honor and in memory of my sister, Sue Weaver and for other 

innocent victims whose tragic deaths could have been prevented had an 

employer done a proper criminal background check before hiring that 

individual.

My name is Lucia Bone, and I'm the Founder of Sue Weaver CAUSE. 

CAUSE is Consumer Awareness of Unsafe Service Employment. It's a nonprofit organization proactively keeping you and your families safe, one 

service worker at a time.

We promote the important of proper annual criminal background checks on 

anyone working in our home or with a vulnerable population. We educate 

you, the consumer, on the importance of knowing who you hire to work in or 

near your home or your family.

At one time or another we all need to invite a stranger into our home for 

maintenance or delivery. We trust the companies we hire to send safe workers 

into our homes. But how do we know that that trust is well placed? My sister, 

Sue Weaver, thought it was. She was wrong.
52 Introduction and Background

Sue hired a very reputable Florida department store, Burdine’s, to have her

home air ducts cleaned. No background checks were done on the workers they 

sent into clients’ homes. The work was subcontracted out and two convicted 

felons were sent into Sue's home to do the service work.

A single woman, home alone, two convicted felons. Six months later one of 

the workers, Jeffrey Hefling, a twice-convicted sex offender on parole,

returned. He raped Sue, he murdered her, and he set her body and her home on 

fire in an attempt to destroy the DNA evidence.

Had Burdine's done a criminal background check they would have found both 

men were not suitable to be working in their clients’ homes. And my sister 

might still be alive today. A criminal background check would have saved 

Sue's life.

Since Sue's death I have campaigned tirelessly to educate and bring awareness 

to the importance of proper background investigations and the importance of 

knowing who you hire. We need federal legislation requiring national 

background checks on individuals entering consumer's homes or working with 

vulnerable populations.

This type of consumer safety legislation would better protect unsuspecting 

individuals like my sister. Not only do background checks make good 

business sense, they save lives. It is absurd that a person with multiple 

convictions for violent sexual assaults would be engaged as a home 

repairman. Yet it happens over and over again.

Everyone has the right to work, but not every job is right for everyone. 

Criminal background investigations provide employers an invaluable tool to 

help them place employees in job appropriate positions, better protecting coworkers and clients. Background checks prevent tragedies.

I believe the EEOC focused its recently updated policy on helping minority 

ex-offenders seek employment without paying any regard to victims. 

Everyone deserves a second chance, but not at the expense of innocents such 

as my sister. Sue did not commit the heinous crimes that Hefling committed. 

Burdine’s should have known about his criminal past and not sent him into 

consumers’ homes.

Is it too much to ask that employers take appropriate steps to ensure the safety 

of their clients from their employees? Unfortunately my sister paid the 

ultimate price because a background check was not conducted that would 

have alerted Burdine’s to who Hefling was.

That doesn't mean that Helfing couldn't have been hired, just that armed with 

the knowledge of his criminal history, Burdine's shouldn't have sent him into 
Criminal Background Checks and the EEOC’s Conviction Records Policy 53

my sister's, or anyone's, home. I'm gravely disappointed that no victims were 

represented at the July 2011 meeting of EEOC. The Commission did not 

consider the victim's side but solely focused their attention on the plight of exoffenders.

Unfortunately, it appears they singled out background checks as the leading 

cause of why ex-offenders fail to find a job, ignoring other difficulties such as 

drug and alcohol addictions, lack of education or vocational training, lack of 

family structure, and ignored the beneficial side of screening.

Rather than take steps to engage employers to rely on criminal background 

checks, their actions will cause employers to conduct less, not more screening. 

No attention was paid to such critical issues as why employers rely on 

background checks to ensure safer workforce and how its new policy would 

discourage the use of background checks. And how victims’ advocacy groups 

felt about any change in policy.

I personally attended the 2011 hearing and was insulted that the EEOC 

showed no interest in hearing from any victims. It was apparent that the 

hearing was only a formality. Their focus was on protecting ex-offenders.

In addition, they made a serious error by failing to allow the public to view 

and comment on the Guidance before it was issued. They need to suspend the 

Guidance and listen to victims and their families’ and victims’ rights

organizations and others representing vulnerable populations. And not ignore 

their comments and letters as has been done in the past. All views need to be 

heard and considered before a new policy goes into effect.

The Guidance must balance the safety of public and innocent consumers 

against the employment concerns of ex-offenders. While sadly it is too late for 

my sister, it is not too late for others. Without background checks used to 

qualify individuals that work or care for our families, or do service work in 

our home, we are knowingly risking the safety of our loved ones.

Under the guidelines the EEOC is actually forcing employers to make 

decisions on job applicants without the proper use of the resources that would 

allow an applicant to be placed in an appropriate position for their skill and 

their character.

When the EEOC weighed the risk and benefits of the proposed policy 

guidance, it should have balanced the safety of innocent consumers and the 

rights of ex-offenders. It did not. Its guidance is unacceptable and it should be 

revoked. 
54 Introduction and Background

JULIE PAYNE, SR. VICE PRES. AND GENERAL COUNSEL OF G4S SECURE 

SOLUTIONS USA:

G4S is a leading security company in the United States. We employ over 

33,000 security officers, nearly 8,000 of whom are armed. G4S provides 

security services to nearly every sector of our country's critical infrastructure, 

including nuclear power plants, government buildings and facilities, chemical 

plants and refineries, ports, airports, railways, public transit facilities, 

detention facilities and financial institutions.

G4S has clients and responds to the public - who expect us to deploy security 

officers who are professional, well trained and trustworthy. In order to meet 

this expectation, to comply with our contracts and to comply with law, our 

screening process is one of the most thorough in the industry.

Our clients expect, and most require, that G4S supplies security officers that 

have passed an extensive criminal background check. I am here today to cast 

light on the EEOC's targeting of companies, including my own, over 

legitimate and necessary business practices.

In April of 2010, David Coleman, an individual with two prior convictions for 

theft, applied for a position with G4S in Pennsylvania. G4S did not hire Mr. 

Coleman, as a result of his convictions. He filed a charge of discrimination, 

claiming that our refusal to hire him was based on his race and that use of 

criminal background checks adversely impacts African Americans.

The EEOC Philadelphia Office expanded the Agency investigation beyond the 

charging party, to include G4S applicants and employees across the United 

States. The EEOC sent a series of requests for information that were 

incredibly extensive and burdensome and sought vast amount of information 

related to our hiring policies.

They requested information about every employee and applicant of G4S, its 

parent companies, its subsidiaries, its affiliates, its successors, its 

predecessors, agents and assigns. It sought the information for a period of time 

dating back to the date when G4S first implemented its policy regarding 

criminal convictions to the present.

G4S, formerly known as Wackenhut in the United States, was founded in 

1958 and has relied on criminal background screening from the beginning. As 

a result of this inquiry, we have hired multiple lawyers, statisticians, experts, 

to assist us with complying with the onerous requests. We have spent 

hundreds of thousands of dollars, to an uncertain result.

The EEOC Guidance and its application in the Coleman case demonstrate that 

the EEOC is focused on using individual cases for expanding claims to 
Criminal Background Checks and the EEOC’s Conviction Records Policy 55

national prominence. This not only dilutes the claims filed by individuals who 

have turned to the EEOC for specific redress, but it also puts employers on the 

defensive as class claims are extremely costly and highly unpredictable.

In our case, because we would not hire an individual who has two previous 

convictions for theft, we are now being asked to defend the use of criminal 

background checks in every hiring decision we have made over a period of 

decades.

The EEOC ignores the significant risk to G4S and other employers if they fail 

to do background checks. We have a duty to perform a reasonable 

investigation on potential employees. And this standard of care can be higher 

in industries, such as my own, where we serve, transport and protect the 

public.

Litigation against employers for negligent hiring and negligent retention 

makes the EEOC Guidelines and enforcement plan a very difficult no-win 

situation for employers.

Another no-win situation for security companies is that most states, with very 

few exceptions, require that a background check be done before security 

officers can be licensed to work. Those with felony convictions, or certain 

misdemeanor convictions, are not authorized to work as security officers in 

most states.

The EEOC is aware of the statutory scheme but counters that state and local 

laws are preempted by Title VII. Therefore, by simply complying with state 

and local licensing laws, private security companies are put in an untenable 

position.

Congress has also expanded access to FBI criminal background checks for 

private security companies. G4S is a member of and worked with the National 

Association of Security Companies in support of the Private Security Officer 

Employment Authorization Act, which was passed in 2004. The enactment of 

this legislation was a clear public policy decision by Congress in support of 

more expansive and stringent criminal background checks for security 

officers. In the law it states that “the American public deserves the 

employment of qualified well trained private security personnel as an adjunct 

to sworn law enforcement officers; and private security officers and applicants 

for private security officer positions should be thoroughly screened and 

trained.”

Criminal background checks draw upon the most rigorous standard of our 

U.S. Criminal Justice system-- that is: proof beyond a reasonable doubt. 

Regardless, the EEOC has determined that in certain circumstances there are 
56 Introduction and Background

reasons for the employer not to rely on a conviction record when making an 

employment decision.

The EEOC is requiring that employers substitute its judgment for that of our 

criminal justice system. This is illogical. Given the burden that must be met 

for a conviction to occur, employer reliance upon a criminal background 

check is far less likely to lead to individual discrimination.

G4S should not have to bear the legal, financial and reputational risk of hiring 

persons who have been convicted of theft for positions where the opportunity 

for theft is great and where our customers have entrusted us to protect their 

assets.

We cannot give guns and badges, keys and combinations, pass codes and 

access to servers containing personal and sensitive information, and our trust 

to those who are at high risk of abusing it or offending again.

RICHARD LARSON, PRESIDENT, WINNING WORK TEAMS, INC.: 

I have managed the hiring of thousands of men and women, using large scale 

job fairs to senior level executive searches. In each instance the goal has been 

simply to identify the most suitable candidates for the organization.

Some of the best people I have hired did not make a strong first impression, or 

attend a ranked U.S. News and World Report Top 50 university. Beyond the 

immediate assessment as to whether the candidate can perform the tasks 

identified in a job description, there are other crucial variables such as 

interpersonal skills, critical thinking skills, leadership potential, brand 

awareness, work ethic, problem saving capabilities, positive attitude, 

teamwork and demonstrated judgment to make good, solid decisions.

Reasonable people often disagree as to who the best candidate for a job may 

be. I have seen hiring managers strongly at odds with the HR manager as to 

which candidate is the right fit for the particular job.

I believe obtaining an accurate criminal history is an important component in 

any disciplined hiring process. Indeed a thorough background check with a 

detailed criminal history is the single most effective tool that employers can 

use to mitigate their risk, which leads me to the April 25th, EEOC Guidance 

Document. I make two key points.

First, my impression is the rationale behind the guidance does not yet resonate 

with small business whose HR managers do not have ready access to the 

educational training awareness offerings of major industry groups and to 

outside legal counsel.
Criminal Background Checks and the EEOC’s Conviction Records Policy 57

I draw this observation in presenting classes on employment law and practices 

to HR [human resource] managers. I would venture to say that if we were to 

conduct focus groups with HR managers from smaller companies nationwide 

we would often find a lack of understanding as to the issues raised in the 

guidance document.

HR managers view themselves in a gatekeeping role to prevent negligent 

hiring claims. That their company could be sued by an ex-offender for not 

being hired is counter-intuitive to them.

When I announced to my Rotary club this week that I would be participating 

in today's discussion I was immediately approached by many small business 

owners who knew nothing of this issue and were concerned.

Accordingly I believe governmental agencies as well as private sector industry 

groups have an obligation to provide educational awareness on the guidance 

so that all employers have an equal opportunity to understand the EEOC's 

current focus on this issue.

My second observation is that companies that do understand the rules, have 

often moved forward to create an interactive process to thoroughly vet 

concerns raised by the disclosure of the criminal history and to determine

whether the conviction relates to the open position under consideration.

I have worked with companies that have been engaged in this process long 

before the April guidance document was issued. The interactive process 

allows the ex-offender to provide court records, often required by the 

company. Some companies also want to see the affidavit supporting the arrest 

to get a better understanding as to what actually took place at the time.

The ex-offender is given the opportunity to make a statement and to address 

concerns. A helpful tool in this process can be a comprehensive set of 

questions that need to be addressed. Another tool may be a matrix of data 

points weighting the various factors for a review.

Such tools provide data as to the nature of the event, when it took place, age 

of the offender at the time, intervening work history and recommendations of 

previous employers and other key factors.

When all of the relevant factors have been gathered, the stakeholders such as 

the hiring manager, the HR manager and the risk manager, make a business 

decision as to whether or not the behaviors underlying the criminal conviction 

correlate to the job.

A person convicted of possession of stolen property may not be deemed 

suitable for a warehouse position but may be deemed suitable for a landscape 

gardening position. And sometimes the decision not to offer any position is 
58 Introduction and Background

necessary to serve the best interest of the company and to prevent downside 

risks.

Whatever the outcome of this step-by-step, case-by-case individualized 

interactive process, documentation of the thorough measures the company 

took to vet and debate these issues will provide the basis for a defense against 

both a negligent hiring charge and a failure to hire charge.

In conclusion, even when a criminal history is not a factor there will be many 

close calls as to who gets hired. And when criminal histories are a factor there 

will also be many close calls as to who gets hired. But who better to make 

these decisions than the employer who knows its own business operations far 

better than any third party?

GAREN DODGE, PARTNER, JACKSON LEWIS LLP:

I appear today on behalf of my law firm, Jackson Lewis, as well as the 

Council for Employment Law Equity.

Both Jackson Lewis and the Council for Employment Law Equity strongly 

support the appropriate use of criminal background checks in employment. 

Such record checks before the commencement of employment are highly 

effective and vital tools to prevent criminal recidivism in the most harmful 

contexts, protect at-risk populations and assist employers in making fully 

informed hiring decisions as well as protecting employees, their clients and 

customers, their assets and the public at large.

As background, the Council for Employment Law Equity is a non-profit 

coalition of major employers committed to the highest standards of fair, 

effective and appropriate employment policies. Jackson Lewis is a national 

law firm of more than 730 lawyers in 49 offices, all of whom are dedicated to 

the representation of management in labor and employment issues. I'm a 

partner at Jackson Lewis and serve as co-chair of the government relations 

practice group.

Larry Bossidy, the former chairman for Honeywell, once said, “nothing we do 

is more important than hiring and developing people. At the end of the day 

you bet on people, not on strategies.” Mr. Bossidy was right. Nothing is more 

important to a company than who it hires. However, betting on people means 

more than simply accepting the first candidate and blindly hoping for the best.

Instead, the employer’s recruitment and hiring process is its biggest and best 

opportunity to shape not only its workforce but its future. But as employers, 

we face a dilemma, as you've heard from some of the other panelists, which is 

only exacerbated by the EEOC's new rule. As those of you who are lawyers 

understand, we live in a litigation-happy environment. Civil lawsuits alleging 
Criminal Background Checks and the EEOC’s Conviction Records Policy 59

an employer's vicarious liability for torts committed by employees or claims 

such as negligent hiring or retention give little quarter for missed steps in 

hiring.

In addition, the EEOC, as you've heard before, is now with this guidance 

taking aim squarely at employers, second-guessing their decisions and 

undertaking high profile, class action type litigation.

So stuck between this “rock” of tort liability and the “hard place” of statistical 

second guessing for those not hired, employers are faced with near impossible 

choices in how and whether to screen perspective workers.

But as a matter of policy, employers should not be forced to bet in the dark. 

Society should actually encourage employers to utilize criminal background 

check information when appropriate in their estimation and judgment as part 

of the hiring process.

Risk in inherent in many aspects of the world we live in but we should not 

force employers to risk employee hiring decisions when the tools exist right 

now to aid them.

So why should employers use criminal background checks? Let me just give 

you a few examples, and others are cited in my testimony.

Back in 2010, Amy Bishop, a biology professor, walked into a meeting and 

shot and killed three of her colleagues, wounding three others. A background 

check at the time of her hiring would have revealed that eight years earlier she 

had pled guilty to and had a misdemeanor conviction for assault and 

disorderly conduct for punching a woman in the head at a restaurant.

Another example: Lisa Keebler, a mother of three young children, arrived 

home to find a meter reader waiting for her. When she left her vehicle and 

went into the house, the man approached. He asked about reading the meter. 

Keebler demanded that the guy leave but then he began to attack her. He beat 

her; he raped her. A background check came back the day after his arrest for 

this assault, revealing several convictions for arson, criminal mischief, 

burglary, theft and other crimes.

Another example: Edwin Harber, an over-the-road truck driver, picked up a 

17-year-old hitchhiker at an Indiana toll plaza. In the sleeping compartment of 

the truck, he repeatedly assaulted, beat and raped her, even threatening to kill 

her. Had his employer done a complete criminal background check in addition 

to the one performed for the vehicle infractions, the company would have 

learned that in the year before they hired him he had been arrested for doing 

similar bad things. In fact, he had a long history of violent sexual crimes.
60 Introduction and Background

Another example involves George Augustine's employer who failed to do a 

criminal background check before they hired him as an elevator operator. Had 

the company done so it would have learned that he had a lengthy criminal 

history. Indeed, he was a registered sex offender. But in 2003, he assaulted 

and attempted to rape a woman while at work.

At the time of his hiring in 1994 as a custodian for a community center, 

Anthony Moore was not subject to a criminal background check. He began 

working in the community center, and in 1997 he took one of the young girls 

in his charge into a weight room and committed various heinous acts. Had the 

center done a criminal background check, it would have discovered an 

expansive criminal record including crimes of violence.

There are many, many, many other examples cited in my written testimony. 

So contrary to an earlier panelist, these concerns are not theoretical. They are 

real. And they're of grave concern to employers and others you've heard on 

this panel.

So these examples are things that all employers want to avoid. And in fact, as 

Ms. Payne noted, it's our obligation as employers to safeguard our workers 

and customers as well as the general public.

These risks are not only physical. For example, the U.S. Department of 

Commerce noted that 30 percent of business failures are due to poor hiring 

practices. Annual losses generated by poor hires, absenteeism, drug abuse and 

employee theft, amount to $75 billion a year. There are other statistics cited in 

my testimony.

But all of this real risk is lost in much of the EEOC's guidance. Rather than 

focusing on job relatedness, business necessity, the kinds of things that 

employers typically take into consideration when they factor all this in, the 

EEOC's guidance largely is based on statistical analysis, the front-end if you 

will, of the disparate impact theory.

Employers must be given the opportunity and the discretion to make their own 

informed decisions as to whether a perspective prospective employee is an 

acceptable risk. They need to have available, relevant and appropriate 

information.

COMMISSIONER QUESTIONS:

CHAIRMAN CASTRO:

Let me open by asking you a question and then I'll open it up to my 

colleagues. In each of the cases that you outlined there, there was not a 

criminal background check that was conducted. And I think what we've 
Criminal Background Checks and the EEOC’s Conviction Records Policy 61

gathered from this morning's panel and from other panelists here today is that 

the EEOC is not saying don't do criminal background checks. They're setting 

forth guidelines to ensure that those background checks are not done in a way 

that violates Title VII.

So had those folks that you just outlined in your presentations done a criminal 

background check, as the EEOC says they should have, these instances would 

not have occurred. So I don't understand why those are relevant to the EEOC 

guidance?

MR. DODGE: 

I understand your question, thank you. The point is criminal background 

checks are important and critical. And what is lost in the discussion of the 

EEOC Guidance is the effect that this guidance is actually having out there in 

the real world.

For example, the EEOC indicated in the middle of its guidance document that 

one of its “best practices” was for employers to take this question off the 

application form: “have you ever been convicted of felony say in the last, let’s 

say seven years.” They want to ban the box [question], if you will, through an 

administrative process generated at the EEOC.

The message that sends to employers is okay, we better take this question off 

our application form and if we don't do it at least some regions of the EEOC 

have indicated that they are going to take an especially hard look at those 

employers who leave that in.

So you're right, the EEOC Guidance doesn't flat-out prohibit the use of 

criminal background checks. But what I'm saying is out in the real world it's 

sending the message to companies, like Ms. Payne's and others, that you do so 

at your own risk. At great risk. Think of the expense and the aggravation in 

compliance simply with the request for information related to the one 

individual in the example cited by Ms. Payne.

What we're hearing from medium and small sized employers in particular is 

because of the complexity of the Guidance, because of the risk that it poses to 

them, that in fact it is chilling employer behavior. And some employers are 

reporting back to us- - and we operate nationally so we hear stories 

anecdotally--that in fact its consequence is that employers are really secondguessing whether they should even do criminal background checks at all.

CHAIRMAN CASTRO: 

And is that the case in the examples you gave us? Did the “ban the box

[question]” chill those particular employers from doing background checks?
62 Introduction and Background

MR. DODGE: 

Those were cases were several years ago, prior to this Guidance, so no.

CHAIRMAN CASTRO: 

They don't relate to this [new] Guidance at all, in this particular instance?

MR. DODGE: 

I'm not familiar with reported decisions after the issuance of the April 2012 

EEOC Guidance. I haven't heard of any cases since then.

MR. MARTIN: 

I would just like to add for the record that the “ban the box” [effort] doesn't 

tell employers to never consider the criminal record. What it suggests is that if 

job seekers with criminal records had an opportunity to get their foot through 

the door and make the case that they're the most qualified candidate that, if I 

can use a sports analogy, that if you get everyone up to the start line it's a 

better chance for them to compete for the job. And the criminal records should 

be taken into account. And you should do a background check, just not on the 

initial applications. I just want to clarify that. And 30 jurisdictions have done 

it and about –

MS. MEYERS: 

Forty-three.

MR. MARTIN: 

Forty-three jurisdictions have already done it around the country, including 

states. Entire states.

COMMISSIONER KIRSANOW: 

I'm going to go back to the law again, sorry for burdening everybody. This is 

to Mr. Dodge, and goes to the issue of job necessity again and job relatedness.

I was listening to some of the scenarios that you described. And when you talk 

about job-relatedness typically what we talked about is when somebody has 

been convicted of embezzlement that bars him from being a bank teller, that 

shouldn't bar him from being say a laborer.

But in a couple of the examples you cited, for example I think it was the meter

reader example, I didn't hear anything about breaking and entering, for 
Criminal Background Checks and the EEOC’s Conviction Records Policy 63

example, which would seem to me for a meter reader probably to be the most 

specific job related criterion under the EEOC Guidance.

To what extent do you find from what you hear from clients that the guidance 

might bar them from considering criminal convictions as an indicator of a 

broader host of issues related to job relatedness?

MR. DODGE: 

That's a good question. So if you're literally looking at the EEOC Guidance 

you might come away from that thinking that the only way I can exclude 

somebody from a job currently is if they've committed a similar type of crime 

related to this job. So bank teller, embezzlement.

But sometimes there may be related crimes that also affect whether or not that 

person is a trustworthy person who can be trusted with money. So it shouldn't 

necessarily be for the exact same crime, it could be for a related band of 

crimes, if you will. 

COMMISSIONER KIRSANOW: 

Just a follow-up, with the exception of Ms. Bone, I haven't heard anybody ask 

for the wholesale rescission of the Guidance. I would ask for anybody who 

would like to contribute, perhaps Ms. Payne. If you were going to suggest just 

one way of improving the Guidance, presuming that it's not going to go away 

-- and by the way have you heard of the Peoplemark case by any chance?

MS. PAYNE: 

I'm not familiar with it.

COMMISSIONER KIRSANOW: 

But to what extent would you suggest just one improvement, among many 

perhaps, to the EEOC Guidance?

MS. PAYNE: 

Well you're boxing me in a little bit asking for just one improvement. 

Certainly from my perspective, because of the industry in which I operate, the 

issue with state law where Title VII preempts state law and the fact that state 

law requires us to do background checks and requires us to not employ people 

who have been convicted of felonies or certain misdemeanors. That's just an 

untenable position for us.
64 Introduction and Background

COMMISSIONER KIRSANOW: 

Does in fact, given that this is a Guidance, and I understand Ms. Miaskoff

supposedly said it that it preempts or supersedes state law, does anyone have 

an opinion as to whether or not that is, frankly, an accurate opinion? Does it in 

fact preempt state law? Does the EEOC Guidance preempt state law, does it 

supersede state law? Is there some kind of federal supremacy issue here with 

respect with EEOC Guidance? I keep hearing it's merely a Guidance but then 

there is a suggestion that it preempts state law.

MS. PAYNE: 

Well what I can tell you from my real experience is that when we received the 

EEOC charge and when the discovery in that case began to take place, in our 

position statement we were very clear that we are required to do these 

background checks by state law. Actually in Pennsylvania it happens to be 

more locally controlled in the jurisdictions within Pennsylvania. And the 

EEOC proceeded with its investigation to the tune of our having to spend

hundreds of thousands of dollars. So they are not appreciating the fact that in 

Pennsylvania we were actually required to do this background check. 

MS. MEYERS: 

Pennsylvania also has its own state anti-discrimination law that probably was 

part of that action that's also being considered as well, right?

MS. PAYNE: 

Correct.

COMMISSIONER KLADNEY: 

Mr. Larson, as I noticed in your statement, how difficult is it to implement this 

type of program into a hiring process as compared to any other kind of 

requirement you're required to by government, say ADA or something like 

that?

MR. LARSON: 

It's another component to consider in the employment matrix. But once there's 

clear understanding as to what the requirements are, then companies can, I 

think, quite readily put together a list of questions or some other vetting 

process to make a reasonable determination. For example, an applicant or an 

employee comes forward and says, my back's hurting and I think I might need 

some sort of reasonable accommodation, given my chronic back problems. 

Companies today are well versed in this. They have a vetting process to 
Criminal Background Checks and the EEOC’s Conviction Records Policy 65

understand the nature of the request. Very often we'll send the person’s

current job duties off to the doctor for his or her opinion and then a 

determination can be made.

So in my experience once the groundwork is laid there's foundational 

education and training components to this. Then determinations will be made 

on a case-by-case basis and not be too burdensome.

I think the point where we are now is there's a lack of awareness as to the 

guidance and how to set up the framework to deal with this issue, you know, 

make wise decisions but avoid the risk that the EEOC is concerned about. As

a practical matter I think once the framework is understood employers could 

do this. But I think we're in a time right now where there's a lot of uncertainty 

as to how to do this.

COMMISSIONER KLADNEY: 

Mr. Dodge, in that regard, your company or law firm puts on seminars, is that 

right?

MR. DODGE: 

That's right.

COMMISSIONER KLADNEY: 

Have you put seminars on about this?

MR. DODGE: 

Yes, we have. I've done probably ten webinars myself -- some for different 

groups and clients. Also, our firm has put an analysis up on our website on 

what we think employers should be doing based on this guidance.

COMMISSIONER KLADNEY: 

So these types of things like when Mr. Larson talks about a matrix of jobs 

versus crimes, you would agree with that?

MR. DODGE: 

Well I know some employers have done that. I know some CRAs [consumer 

reporting agencies] have put that together as well. I think it's probably an 

individualized determination based on the company if that matrix scenario 

makes sense in your situation. I know certainly things in the guidance we've 

taken away as a law firm and have made recommendations to our clients. I 
66 Introduction and Background

think overall it's sort of encouraged employers to dust off their criminal 

policies and to take a look and to more closely monitor whether what they're 

looking for accurately is what they need to do.

COMMISSIONER KLADNEY: 

I mean I did notice in your statement, I mean I was sitting there going left, 

right, left, right. I mean I just kept getting hit in the jaw, you know. I mean it 

was pretty strong about the criminal background.

And you were very strong about drugs and alcohol, at least that was my 

impression. And I was just wondering, okay people get convicted of using 

drugs. They get convicted of using alcohol and it's bad. People who get 

convicted of DUI usually have driven [under the influence] DUI quite a few 

times before they wind up with a felony prison sentence.

What about the people in AAA [Alcoholics Anonymous], or NA [Narcotics 

Anonymous]? Say in your firm you have over 1,000 employees with lawyers 

and others. I'm not casting any aspersions, but I bet you that there's somebody 

in there going to AA or NA or something like that. Is that something you 

should consider as an employer? Because a lot of those people have issues 

along the way.

MR. DODGE: 

Sure. So obviously it interplays with the Americans with Disability Act, if 

somebody is a recovering alcoholic or recovering addict, obviously there are 

ADA considerations. But if somebody is driving a company vehicle and 

they've got DWIs [driving while intoxicated], clearly that is a relevant 

consideration. So in simply practicing law, if somebody is a recovering 

alcoholic, I would say probably not. But in some industries it is going to be a 

relevant consideration. 

COMMISSIONER KLADNEY: 

So what you're saying is that you bring a focus to this Guidance and you use it 

to help you put people in positions where they can help you as opposed to 

cause you liability? Is that fair?

MR. DODGE:

That's fair.

COMMISSIONER KLADNEY: 

Thank you.
Criminal Background Checks and the EEOC’s Conviction Records Policy 67

COMMISSIONER GAZIANO: 

I want to thank this panel as well, but especially I'd like to convey my thanks

to Ms. Payne, I hope all of our thanks to all of your colleagues. There are 

some federal agencies that are vindictive when people publicly challenge what 

they perceive as an abuse. I've seen that before and I've seen it possibly with 

the EEOC. So it's doing great service to this Commission that you give such 

concrete testimony. And it would be very harmful to this Commission were 

we not to try to follow up and watch what happens to your company's case.

But the last two panels have helped crystallize where there's agreement and 

disagreement. I'd like to state where there are differences. I think we, at least 

all in this room and almost everyone, agree that criminal background checks 

shouldn't be used as automatic, definitive rejections. That it's important for 

people to consider employing those with criminal records when possible.

I think we also will concede that the EEOC Guidance doesn't automatically 

say that someone will have liability in an enforceable way, since they can't 

issue regulations at all. The state of the world, as I understand it, is that prior 

to these guidelines some companies were probably using criminal background 

information too automatically, reflexively using them too heavy handedly.

But some weren't using them enough in situations like Ms. Bone's, and an 

unfortunate loss occurred. And as I understand it from the last panel in the 

exchange with Commissioner Kirsanow, the EEOC had a hunch and it 

decided that overall too many companies were using it too loosely, but 

decided it without data. And that's what bothers me.

Without data, they acted on their hunch and designed a guidance that (I'd like 

to hear any disagreement with this) increased the costs of using criminal 

background information, in order to discourage it. And it also increased 

liability for employers who rejected an applicant for a prior felony, as a result 

of the EEOC’s wisdom or hunch that it would improve America. But without 

data. And by the way, it has certainly had the effect of increasing the cost to 

companies of using criminal background information -- that was its intent. It 

was meant to chill and meant to increase costs, because they wanted to affect 

employer behavior.

Does anyone disagree with that summary? Some of you may think that's great 

and that's good, other people may be concerned. But does anyone disagree 

with that characterization of where we are?

MS. MEYERS: 

I will say I don't completely agree. I can see that yes there is definitely a lot 

more data that is needed. However, organizations like mine who help people 
68 Introduction and Background

every day, we get the calls every day from individuals who are struggling in 

the labor market, who are struggling to deal with their criminal history.

Whether it's one case or a slew of cases where they're attempting to enter or 

re-enter the labor market and are blatantly being told no we're not hiring you 

because you have a criminal history.

We do agree that more data needs to be collected. The EEOC has accepted 

letters from organizations like ours talking about and sharing the stories of the 

many thousands of clients who have come through our doors. Many of which 

we have helped get jobs without having to litigate, where we've advocated on 

their behalf.

So there are a lot of cases that didn't need to be filed because these individuals 

found non-profit organizations like ours that are able to meet with employers 

and advocate on behalf of that individual, [meaning] discuss what's on their 

history, make sure that that person has had the opportunity to present the 

evidence of rehabilitation that they had obtained up to that point and then 

[ask] for the employer to then consider actually hiring that person.

And so they've taken some of that information and also used it, we believe, in 

their Guidance. But I do agree that part of the work and what organizations 

like ours have been pushing for them to do is to bring some light to this issue 

and to get more businesses to think about the way that they're conducting their 

hiring practices so that we can make sure there's a fair opportunity.

COMMISSIONER GAZIANO: 

Use the levers they have to put pressure on them?

MS. MEYERS: 

I think all enforcement agencies do that. I think all employment agencies have 

that ability to do that.

MR. MARTIN: 

I'd like to respond to your question. First I have a hard time with the fact that 

we're talking about the Guidance as if it hasn't existed for many, many years. 

This is a re-issuance of the Guidance, it's not that much of a departure from 

the original Guidance.

COMMISSIONER GAZIANO: 

Yes, but the EEOC is very proud of it. And why go to the trouble if it wouldn't 

have some effect?
Criminal Background Checks and the EEOC’s Conviction Records Policy 69

MR. MARTIN: 

Maybe I'll pinch my answer down to respond to that as a second question. So I 

wanted to respond to the question you asked about additional costs. I mean 

every time I've talked to employers, I've done focus groups with employers. A 

big part of my job is engaging employers, hearing what they have to say.

It always starts with liability. Everything is liability, I'm going to face liability. 

I'm going to be sued. I'm going to have to spend a lot of money to respond to 

that. Clearly that happens in real life. So idea of the EEOC giving guidance to 

employers to avoid that liability down the line, and by virtue of a small 

investment up front, I mean the background check companies, with the 

proliferation of them, the cost has gone down considerably.

So to me there's a financial savings. And is there not a financial savings in 

finding the most qualified candidate up front, whether that job seeker is 

someone who'd been involved in the criminal justice system or not? If I'm an 

employer to me it's all about the bottom line. And if the bottom line means I'm 

better able to sort through candidates to find the most qualified candidate, that 

sounds like a win/win in my opinion.

COMMISSIONER YAKI: 

Ms. Payne, your quote was we cannot give guns and badges, keys and 

combinations, pass words -- your statement was we cannot give guns and 

badges, keys and combinations, passwords et cetera to convicted felons or 

something like that, right?

MS. PAYNE: 

Something like that, yes.

COMMISSIONER YAKI: 

Okay. And the reason why is because you're concerned about their ability to 

perform their jobs in a way for the security operations that you have, private, 

public, whatever, around the country and the world that G4S has, correct?

MS. PAYNE: 

Correct.

COMMISSIONER YAKI: 

Do you give your employees psychological tests?
70 Introduction and Background

MS. PAYNE: 

Not in all cases. We do where they're located at certain facilities where clients 

require it and where they're armed.

COMMISSIONER YAKI: 

Do you know if the employees in the Jimmy Mubenga case were given 

psychological tests?

MS. PAYNE: 

That case does not emanate from my particular area of responsibilities.

COMMISSIONER YAKI: 

Have you heard of Jimmy Mubenga?

MS. PAYNE: 

I've heard the name, but I'm not familiar with the case.

COMMISSIONER YAKI: 

It involved a G4S employee at a detention center at Gatwick where an asylum 

seeker was asphyxiated during deportation. There's a concept called "carpet 

karaoke" that's on the YouTube video.

MS. PAYNE: 

Sir, I'm sorry you're talking about a case that emanated from an affiliate 

company in Europe and the UK and I'm just--

COMMISSIONER YAKI: 

Well is it owned by G4S?

MS. PAYNE: 

It is owned by G4S, but that is not my area of responsibility. So I'm not --

COMMISSIONER YAKI: 

So let's talk about the U.S., are you familiar with the Coke County Juvenile 

Detention Center in Texas? I mean it's just cases of sexual assault by guards 

on juveniles were alleged in that instance by one of the other companies that
Criminal Background Checks and the EEOC’s Conviction Records Policy 71

you acquired, Wackenhut GEO, for example. I mean do you know if all, have 

you done retroactive background checks on all the employees where the 

companies have been acquired like GEO, that Wackenhut, Cornell --

MS. PAYNE: 

Sir, we did not acquire the GEO Company, we divested ourselves of the GEO 

Company in 2002.

COMMISSIONER YAKI: 

Was Wackenhut not part of your --

MS. PAYNE: 

Wackenhut is the predecessor, well excuse me. Wackenhut was the name of 

the company trading in the U.S. before it was purchased by a predecessor of 

G4S. But at the time Wackenhut was purchased it divested itself of its 

correction business, which became GEO. So we have not owned GEO or it's --

COMMISSIONER YAKI: 

You're not involved anymore in the lawsuits, so let me just ask you this. Do 

you know how long your prohibition on hiring people with felonies goes back 

in terms in refusal to give anyone -- I mean how far does it go back? 

MS. PAYNE: 

We have not been able to establish the exact date that our policy went into 

place. We do know that as far as the Wackenhut Corporation is concerned it 

came into existence over 50 years ago. And some form of background 

screening has been used since the beginning.

COMMISSIONER YAKI: 

Then let's go back to things that are G4S. Do you know about Cell 36?

MS. PAYNE: 

No, sir.

COMMISSIONER YAKI: 

Cell 36 is a detention cell in Gaza that the Children Defense International has 

claimed that the children are being tortured in there. And whether they're true 
72 Introduction and Background

or not it just asks me the question, the allegations against G4S employees are, 

I assume, that you, subsidiaries, affiliates, whatever you want to call them.

To me it begs the question of you sit here and you talk about how we're not 

going to give anyone with this kind of record a chance in our organization, but 

your organization has a number of different lawsuits, complaints, allegations, 

whatever by its own employees dealing with violent acts. Deliberate acts, 

cruelty acts.

And I'm just trying to figure out how is it that in your rigorous screening 

process these kinds of individuals somehow get through? I mean is there 

something else going on there? Are you not administering the kind of tests, I 

guess it goes to my point of how do you really know who it is that you're 

getting unless you conduct, I assume you conduct a reasonable inquiry into 

the background into each of these people to determine whether or not they're 

qualified to serve the security needs of your customers around the world.

MS. PAYNE: 

Sir, I cannot speak to the screening practices or policies of some affiliated 

companies that exist in other parts of the world, that's not my area of 

responsibility.

COMMISSIONER YAKI: 

Maybe I'm mistaken, it says G4S, the British Defense Minister calls it the G4S 

Company. Other company is called the G4S. How can you sit here and, well I 

mean are you saying that you're like McDonald's, you franchise it out to 

people and you only have some of the standards?

MS. PAYNE: 

My responsibility lies here in the United States for a very specific affiliate of 

G4S. And I'm not aware of many of the things of which you're bringing up 

today.

COMMISSIONER YAKI: 

It's too bad. You should, because it is your company and you're here talking 

about how you need this for your hiring and yet you have allegations of how 

your employees may be performing acts that may or may not be legal in other 

places as well. Many of the same acts that you're condemning out a whole 

group of people for without doing a real inquiry about it.
Criminal Background Checks and the EEOC’s Conviction Records Policy 73

COMMISSIONER ACHTENBERG: 

Thank you, Mr. Chairman. Thank you, Mr. Martin, for pointing out something 

that I had wanted to comment on, namely that the EEOC Guidance is built 

upon EEOC Guidance that was promulgated in the past. I would also point out

that providing Guidance is a tried and true function of various enforcement 

and regulatory agencies.

There's nothing that is a departure from standard practice by issuing guidance, 

far from it. The EEOC Guidance, at least in my view, is an important update 

responding to both new practices, new public, new policy research that has 

been promulgated. New court decisions that mean that employers benefit, 

aren't harmed by, the EEOC giving further elucidation of ways in which they 

might view particular actions being taken by particular employees.

So I was very glad that you point that out, Mr. Martin. I'm wondering whether 

or not, given your specific expertise in the development of hiring practices 

that relate to this area, if there's anything about the EEOC Guidance that you 

think can be improved upon, or anything that you find particularly 

problematic? And after that I'd like to ask Ms. Meyers if she would comment 

similarly.

MR. MARTIN: 

That's a good question. Thank you. I would respond very similarly to what 

someone said earlier, which is if I had my druthers I would like to see some 

sort of safe harbor built into it, because in every engagement I've had with 

employees, again starts out with liability concerns.

And in New York State for, instance although we've had an antidiscrimination law on the books for years, it was only a couple of years ago 

that we passed legislation to create a safe harbor which gives a rebuttable 

presumption to employers who exercise due diligence by doing background 

checks and following the factors in the anti-discrimination law.

MS. MEYERS: 

I would agree. That's the same. Another particular area that would be helpful I 

think in our work is offering more protections or seeking more protection for 

employers in states. As I mentioned earlier that, as an advocacy organization, 

we've been working with legislators and with policy advocates in states 

around the country to figure out a way to address that and to possibly legislate 

around that particular issue.
74 Introduction and Background

And it would be helpful to have more discussion about that and how it could 

relate and serve as a complementary factor as part of the whole hiring process 

and consideration that employers will undertake.

COMMISSIONER KIRSANOW: 

And again, thanks to the panelists. And to Ms. Payne I want to thank you for 

coming to testify in a matter of important public concern, despite that your 

company is smeared by relationships you don't even have. And companies 

that exist in foreign countries that are not even subject to the EEOC Guidance 

about a matter that actually shows that imperfect policies are imperfect and 

establishes the need for criminal background checks.

But my question goes to Ms. Bone and that is you indicated there is no 

testimony at the EEOC hearing from victims, but do you know if anyone 

requested to testify?

MS. BONE: 

To my knowledge the EEOC did not ask. And on more than one occasion I 

wrote to the EEOC asking them to look at victims and victim advocacy 

groups.

COMMISSIONER KIRSANOW: 

They did not ask for people to testify?

MS. BONE: 

To my knowledge they did not.

COMMISSIONER KIRSANOW: 

My question is did anyone ask to testify, and you just said you wrote?

MS. BONE: 

I did.

MR. DODGE: 

I'm somewhat familiar with that. The way the witnesses went at that EEOC 

hearing, there were a number of us that were seeking to have other witnesses 

testify. But the EEOC Chair chose the panelists at the EEOC, so it wasn't like 

these Commission panels, which are, I would say representative of all 
Criminal Background Checks and the EEOC’s Conviction Records Policy 75

different points of view on the issue. The EEOC hearing was very much 

focused on one side of the inquiry.

COMMISSIONER KIRSANOW:

Mr. Martin: What is your opinion of a guidance that would permit employers 

to use criminal background check information with sufficient safe harbors out 

there and allow them to go fully and robustly in questioning about somebody's 

background, but only after, similar to requirements under the Americans With 

Disabilities Act, a job offer has been tendered already? 

MR. MARTIN: 

Good question. Because even as an advocate I've been on the fence about that, 

mostly around the impact on small employers and whether it would be overly 

burdensome on small employers. I think in concept it would lend itself to the 

issues I care about, which is opening up doors for people and then being able 

to isolate when the criminal record is taken into account, similarly under the 

Americans With Disabilities Act.

But if I were to support something like that, an advocate for it, I may be open 

to, for instance, maybe suggesting that certain small size employers be 

exempted from it. Although the biggest abusers to be quite frank, are the large 

employers, not the small to medium size employers. Small to medium size 

employers actually are the ones who typically hire people who are formerly 

incarcerated because they tend to work with agencies like our, because they 

don't have their own HR departments and they rely on us for their initial 

screening. And for them, in their mind, whether it's real or not, it helps to 

reduce liability concerns because they have a sense of who they're getting 

through the door.

Panel Three Speakers

MONTSERRAT MILLER, PARTNER, ARNALL GOLDEN GREGORY; COUNSEL, 

NATIONAL ASSOCIATION OF PROFESSIONAL BACKGROUND SCREENERS

(NAPBS):

NAPBS is a trade association representing screening professionals involved in 

employment and tenant background screening. Founded in 2003, NAPBS 

represents 681 members, many of whom are engaged in employment and 

tenant background screening across the country.

The majority of these member companies are small businesses with 25 or 

fewer employees, although our membership includes a range of companies 

from Fortune 500 companies to small local businesses. Collectively, NAPBS 

member companies conduct millions of background checks each year.
76 Introduction and Background

NAPBS member companies provide background checks for private 

employers, volunteer organizations, nonprofits, government, public utilities, 

health care, higher education and publicly held corporations. The Association 

exists to promote ethical business practices in compliance with the Fair Credit 

Reporting Act, equal employment opportunity and state consumer protection 

laws relating to the background screening profession.

NAPBS provides educational programs aimed at empowering members to 

better serve clients and to maintain standards of excellence in the background 

screening profession including a company accreditation program, individual 

Fair Credit Reporting Act certification program as well as a provider exam.

Over the past ten years there has been an increase in the number of 

background screenings and there are several contributing factors such as 

increased security concerns after 9/11 and greater emphasis by employers to 

focus on safe hiring to protect their business, employees and customers.

Employers value a good hire over a bad hire and seek to ensure that the right 

person is hired for the right job to avoid injury to customers, injury to other 

workers, regulatory noncompliance, potential litigation, shareholder suits or 

employee theft and fraud.

In addition, there has been an increase in the number of federal, state and local 

lawmakers enacting laws mandating checks especially for the most vulnerable 

populations such as the disabled, children and the elderly. In many states, 

background checks are required for a variety of private sector positions and 

state licenses.

One important factor to bear in mind with this increase in the number of 

background screens is an associated increase in employers and the public's 

desire to know more about individuals. With the desire for greater knowledge 

comes an increase in the number of individuals conducting their own online 

Google searches as well as an increase in the number of instant online 

searches available to the general public.

However, there is a distinction between a Google search or an instant online 

search and a background report created by a professional background 

screening company under the requirements of the Fair Credit Reporting Act.

A professional screening firm providing background reports for employment 

purposes is required to follow strict procedures pursuant to the Fair Credit 

Reporting Act and other state and local laws that limit how information is 

reported. Use of an instant online website or search engines offers none of the 

consumer protections afforded under the Fair Credit Reporting Act and other 

applicable laws.
Criminal Background Checks and the EEOC’s Conviction Records Policy 77

We believe that background screening is an effective tool used by employers 

to protect employees, customers and assets from risks such as theft in the 

workplace, employee-on-employee violence as well as ensuring that only 

appropriately screened individuals deliver goods or provide services in our 

homes.

To be clear, background screening is not conducted to keep individuals out of 

the workplace or, for instance, to impair reintegration of ex-offenders into the 

workplace. Rather, background screens are conducted to facilitate the right 

person for the right job.

Background screens provide employers with information to make informed 

hiring decisions. The federal government, including the EEOC, fully 

appreciates and values background screening, conducting millions of checks 

each year.

The Supreme Court, in a recent decision regarding the use of background 

checks, NASA versus Nelson, confirmed the value of such checks and said 

this in its opinion, and I quote, "The government has an interest in conducting 

basic background checks in order to ensure the security of its facilities and to 

employ a competent reliable workforce to carry out the peoples' business," 

end quote.

Further the Court said, and again I quote, "Like any employer, the government 

is entitled to have its projects staffed by reliable, law-abiding persons who 

will efficiently and effectively discharge their duties," end quote.

The private sector is no different. NAPBS member companies are not 

insensitive to the frustrations some have in finding employment especially in 

time of national economic stress, and we also appreciate the strong desire to 

reintegrate ex-offenders into American society.

However, attempts to ease unemployment frustration or reentry desires should 

not come at the expense of keeping people and businesses safe from physical 

or financial harm. Also our experience is that ex-offenders are being hired and 

their criminal history does not serve as a permanent bar to employment.

In the interest of time I will not restate what our previously provided written 

comments cover regarding the use of background screens and compliance 

under the Fair Credit Reporting Act as well as NAPBS's concerns with the 

EEOC guidance. Those are already stated in the written testimony we 

provided.

In conclusion, we would ask that the Commission consider the following. 

First, we can all agree that reintegration of ex-offenders into society is 

important. The use of background screening is not the dominant cause of the 

troubles ex-offenders face. The problems facing ex-offenders go well beyond 
78 Introduction and Background

an employer's use of background screening in the hiring process. Substance 

abuse, lack of education and established work habits, the absence of a stable 

family relationship can and should be looked at as problems facing exoffenders. These are issues we must continue to address.

Second, we need to change the discussion from focusing too much on placing 

constraints on or discouraging the use of criminal history information in the 

employment context and focus more on greater public discussion about 

current and potential programs geared to helping ex-offenders such as the 

Federal Work Opportunity Tax Credit, WOTC, which provides a tax credit for 

employers who hire ex-offenders. There are also similar state programs.

And another is certificates of rehabilitation or certificates of good standing 

which could provide safe harbors for employers who hire ex-offenders 

depending on how they are drafted.

NICK FISHMAN, CO-FOUNDER, CHIEF MARKETING OFFICER AND EXECUTIVE 

VICE PRESIDENT, EMPLOYEESCREENIQ:

Our company conducts employment background checks for over 3,000 

organizations across the United States and abroad. We work with those who 

serve vulnerable populations such as schools, overnight camps and home 

health care agencies, hotels, airlines and banks, to name a few.

We provide these clients with a wide range of services, all of which allow 

them to make better informed hiring decisions. Today I'd like to share with the 

Commission my experience and perspective as a professional background 

screener.

I'll focus my remarks on how our company conducts criminal background 

checks. I'll also highlight the findings from our annual background screening 

marketplace survey completed by a random sampling of over 2,000 human 

resource professionals since 2010.

Our business is based on the core belief that background checks are necessary 

for employers to have the information they need to make informed hiring 

decisions. Employers agree. Our 2010 survey revealed that 90 percent of all 

U.S. businesses perform criminal background checks on perspective 

employees. At the time, 70 percent said that these checks were growing in 

importance.

Our clients tell us that their most valuable assets are their employees, but if 

they're not screened properly they can become their biggest liability. Every 

new hire is a potential risk. Employers simply want to know that they're 

bringing in the right people and putting them in the right positions.
Criminal Background Checks and the EEOC’s Conviction Records Policy 79

As for perspective job candidates, 96 percent of the employers that we 

surveyed indicate that applicants understand and accept the needs for these 

checks. Furthermore, these candidates must provide written consent before a 

search can commence.

The FCRA (Fair Credit Reporting Act) requires that we, as a consumer 

reporting agency, ensure maximum possible accuracy in all of our reports. 

This is a responsibility that our company takes very seriously. That means that 

with every background check we take steps to verify the information before 

it's reported to the employer.

We go to the most current, accurate source each and every time. We confirm 

the identifiers on a record belong to the subject of a report such as the name 

and date of birth and/or Social Security number, and follow standards for 

acceptable and legal reporting.

As a result of our meticulous process, we stand by the accuracy of the 

information we report. Our dispute rate is just 0.15 percent, and when disputes 

do occur we handle them quickly so that in the unlikely event the information 

needs to be modified it can be done without penalizing the candidate or 

unnecessarily delaying the hire.

We've heard the argument that the use of criminal background checks is 

creating an underclass of unemployable Americans. Based on the feedback 

and statistics that we pull from our survey, that simply is not the case.

In fact, our 2012 survey revealed the majority of employers do not eliminate a 

candidate solely on the basis of a criminal record. Seventy percent of our 

responders said that when they find a criminal record on a job applicant that 

person is denied employment less than ten percent of the time.

When asked which is more important, qualifications or lack of a criminal 

record, 73 percent indicated that qualifications were, in fact, more important. 

And that's up from 70 percent in 2011.

These results demonstrate the willingness on the part of employers to look at 

qualifications and consider the needs of the business before eliminating 

candidates based on criminal history. In fact, 92 percent of those surveyed in 

2011 indicated that they reach out to candidates or consider job relevance 

when a check contains adverse information. Many that did not go back to the 

candidate indicated that they were in regulated industries that barred them 

from hiring those with criminal records.

Lastly, it's important to note that when a criminal record is revealed, the report 

does not include protected-class information. Employers review the report and 
80 Introduction and Background

contemplate if the type of record found would reasonably suggest a pattern of 

behavior. Our clients are looking for reasons to include, not exclude.

The EEOC guidance on criminal records has caused tremendous confusion 

among our clients. There are three main areas that are causing the most 

confusion. First, the EEOC recommends as a best practice that employers 

defer the job application question that asks if a person has been convicted of a 

crime.

The recommendation is not feasible for many clients who have bonafide job 

qualifications that require exclusions based on certain types of crimes. Clients 

are understandably confused about when they can and should ask about 

criminal history, and also when they should conduct a background check.

Delaying the question can cause both the employer and the candidate to invest 

heavily in an opportunity or even quit their job only to be disqualified later in 

the process.

Secondly, there's no relief or consideration for employers that have state law 

conflicts. Employers who have traditionally conducted background checks 

and excluded certain applicants based on criminal standards defined by state 

law are now between a rock and a hard place. In some instances, there's 

simply no way to abide by the law without setting aside the guidance.

Finally, the EEOC adds a new requirement for employers to conduct an 

individualized assessment when a criminal record is found. The guidance does 

not recommend any particular means of conducting an assessment, and we're 

hearing a wide and variable range of practices that employers are considering 

to meet this requirement. Until tested in the courts, no one really knows what's 

sufficient.

To add to the confusion, public statements by EEOC field office attorneys 

have warned employers that they'd better think twice before conducting a 

criminal background check. This type of statement can certainly have a 

chilling effect on employers.

We suggest focusing on programs that offer training to those with criminal 

records. Identify programs that help those with convictions get on their feet, 

whether offering assistance with drug rehabilitation, finding a safe place to 

live, or helping them find gainful employment.

We also suggest looking at some of the laws that have been enacted across the 

country to help those with criminal records succeed in the workplace. Illinois 

has established a certificate of rehabilitation and offers employers legal 

protection if they were to hire someone with one of these certificates. The 

State of Ohio just passed a law that offers a certificate of employability.
Criminal Background Checks and the EEOC’s Conviction Records Policy 81

Both our experience with our clients and our survey findings suggest that 

employers are using background checks in a reasonable manner. Enacting 

laws that inhibit their ability to perform proper due diligence is not the 

answer. In fact, they can lead to devastating consequences for the company, 

their employees, their customers and the public.

Our research, while limited, does not support a finding of widespread 

discriminatory practices based on the use of criminal background checks, and 

such research if it exists was notably absent in the recent EEOC guidance. It 

just isn't fair to ask employers to ignore information that could make them 

liable or keep them in the dark. Thank you.

TODD MCCRACKEN, PRESIDENT, NATIONAL SMALL BUSINESS ASSOCIATION:

The NSBA was founded in 1937 to advocate for the interests of small 

businesses in the U.S. It is the oldest small business organization in the United 

States. We're representing more than 65,000 small businesses throughout the 

country in virtually all industries and in widely varying sizes.

The topic that we're here to talk about today, it is an unfortunate fact of life 

that not everyone is law-abiding. It is also a fact of life that not everyone 

should be employed in certain types of jobs. We do not want some people 

entering other folks' homes. We do not want child molesters working in 

daycare centers, and we do not want embezzlers handling large sums of cash.

Employers want to provide a safe place for their employees to work and do 

their best to prevent workplace crime. They want to do their best to ensure 

that the employees that they send to customers' homes as technicians, repair 

people or sales folks do not inflict harm on their customers.

They need to take steps to prevent theft, fraud and embezzlement. Criminal 

background screening is an important tool, sometimes is very nearly the only 

tool that employers have to protect their customers, their employees and 

themselves from criminal behavior.

Given that fact, small businesses are willing to comply with reasonable rules 

designed to ensure that criminal background screening is not having a 

disproportionate impact on minorities. But they also want to know that those 

rules do not endanger their employees or customers, do not substantially 

increase their risk of being victims of property crimes, or do not increase their 

risk of being held liable for the tort of negligent hiring.

Government, however, has an obligation to articulate rules that are 

comprehensible and can actually be implemented. It is fundamentally unfair, 

and in practice, counterproductive for the rules to be so opaque that nobody 
82 Introduction and Background

can understand them. It leads to a situation where the rules that cannot be 

understood are effectively ignored.

As I will discuss in detail later, the EEOC guidance is not guidance at all. It 

provides no meaningful rules about how to proceed. It is really just a threat 

that the EEOC may proceed against employers if in hindsight it decides it 

wants to.

Small businesses are often caught between competing government priorities 

and perspectives among different federal agencies, the courts, and state and 

federal governments. The recent EEOC guidance, for example, explicitly 

stated that the fact that a small business was complying with a state legal 

requirement to conduct a criminal background check or to bar a felon from a 

particular position would not prevent an EEOC enforcement action.

With respect, it is ridiculous that small business is forced to choose between 

two conflicting government requirements. If the EEOC has a problem with a 

state statute it should challenge the statute, not launch an enforcement action 

against a small business who is complying with state law.

Unlike the federal government, small businesses have limited resources and 

defending such a lawsuit will damage the financial health of the business. 

Similarly, state and federal courts will allow potentially devastating tort 

lawsuits against small businesses that hire felons who commit crimes at the 

workplace or in the customers' homes. Yet the EEOC has threatened to launch 

lawsuits if they do not hire those same felons.

Small businesses really want to know what the rules are so they can comply 

with those rules and get on with running their businesses. They want the state 

and federal governments including the courts, the legislative and executive 

branches to set forth consistent and comprehensible rules. This does not seem 

like it is asking for too much. The rules applying to small businesses should 

not be that they are at substantial legal risk no matter what they do. 

Workplace violence, protecting customers and preventing property crime is 

continuing as a serious problem. Moreover, in the absence of criminal 

background screening, our members are subject to substantial risk of being 

successfully sued for the tort of negligent hiring.

Workplace theft and embezzlement are, as I mentioned before, very large 

problems. Both can be reduced through a proper background screening. 

According to the Bureau of Justice Statistics, approximately 500 to 7,200 nonfatal violent crimes occurred to individuals aged 15 or older or while they 

were at work in 2009.
Criminal Background Checks and the EEOC’s Conviction Records Policy 83

Workplace violence accounted for 15 percent of non-fatal, violent crimes 

against persons age 16 or older. In short, workplace violence remains a very 

serious problem even though it has declined over the last 15 years.

A Westlaw search of the law reviews regarding negligent hiring indicate that 

the trial bar is quite busy filing negligent hiring lawsuits. Businesses have to 

take that risk into account when making hiring decisions.

The vast majority of small businesses want to comply with the law and with 

EEOC guidance, but in the current situation they are unable to do so. I can 

assure you that virtually no small business owner is going to be able read, 

absorb and apply the 55-page, 167 footnote enforcement guidance on the 

consideration of arrest and conviction records in employment decisions under 

Title VII of the Civil Rights Act 1964 issued by the EEOC on April 25th, 

2012.

More importantly, we have had many discussions with sophisticated attorneys 

who grapple with these issues for a living, including those that work for large 

law firms advising large corporations. They do not know how to advise their 

clients either. If they are at a loss, then small firms and their generalist 

attorneys will fare no better.

In the real world, small firms and their advisors are not going to be able to 

understand what the EEOC regards as permissible with respect to the use of 

criminal background checks.

The rules that small business owners have to grapple with now are so opaque 

and complex that they will in practice have to be ignored. The clear and quite 

understandable concerns about tort liability and worker, customer and family 

safety will take precedence over amorphous and ill-defined EEOC guidance. 

In short, EEOC guidance will not achieve its objective.

In conclusion, we urge the Commission to not prioritize enforcement against 

firms with educational attainment requirements or criminal background 

checks unless there is a substantial, factual basis to believe that they have an 

unlawful purpose.

We also strongly urge the Commission to clarify its guidance with respect to 

criminal background checks so that the Commission's expectations are made 

clear and so businesses can effectively meet those expectations.

JONATHAN SEGAL, PARTNER, DUANE MORRIS LLP, LEGISLATIVE DIRECTOR, 

SOCIETY FOR HUMAN RESOURCE MANAGEMENT:

SHRM is the world's largest association devoted to human resource 

management, HR, with more than 260,000 members in over 140 countries. 
84 Introduction and Background

SHRM has participated in ongoing discussions at both the national and the 

state levels regarding appropriate use of background information in the 

employment process.

These discussions are heightened by the competitive employment 

environment created by today's economy. SHRM and its members are 

supportive of and are involved with various public policy initiatives focusing 

on finding jobs for the unemployed. SHRM, for example, is currently working 

with the U.S. Departments of Labor and Defense to help increase employment 

opportunities among returning military veterans as well as disabled 

individuals.

At organizations, whether large or small, HR professionals are charged with 

ensuring that each individual hired possesses the talents, skills and work ethic 

needed for the organization's success. The consequences of making a poor 

hiring choice can be great, possibly leading to financial losses, an unsafe work 

environment, and, if the employee engages in severe misconduct, legal 

liability to customers, shareholders or others in the form of negligent hiring 

lawsuits or other legal claims.

As a result, HR professionals strive to make the most informed choices 

possible under the law when selecting candidates for their organizations. In 

today's market it is not uncommon for employers to receive hundreds of 

applications in response to just one advertisement for a vacant position.

To cull through these job candidates, employers must use many factors to 

narrow the applicant pool. Factors may include work experience, education, 

certifications and so on. Once a group of candidates or a finalist has been 

selected, most often after an initial round of interviews, the HR department 

typically conducts a background check on the candidates or candidate.

It is important to remember that certain federal and state laws, as we've heard 

before, statutorily require employers to conduct specific background checks 

for certain positions. Many state laws require the use of criminal background 

checks for certain industries to maintain their licenses.

Health care and child care are but two examples. Some convictions under such 

state laws are automatic disqualifiers for employment. 

Independent of any state law, failure to conduct a criminal background check 

can result in unreasonable risk. You've heard many examples this morning. I'd 

like to provide but one more example of the difficult decision faced by 

employers.

In response to the Gulf oil spill just a few years ago, BP worked with state 

unemployment offices in three states to fill thousands of positions to clean up 
Criminal Background Checks and the EEOC’s Conviction Records Policy 85

affected beaches. In this case, no criminal background checks were

performed. A BP contractor ended up hiring a supervisor who had a criminal 

history and who, during his employment on the cleanup, allegedly raped one 

of the workers whom he supervised.

As you can imagine, the media stories about the cleanup efforts quickly 

changed from kudos for job opportunities provided to thousands of 

unemployed individuals to stories about the obviously tragic alleged rape and 

to condemning the company for failing to provide for the safety of others and 

the public by not performing criminal background checks.

When the EEOC published updated guidance on the use of criminal history 

information in April of this year, SHRM members were pleased to see that the 

guidance did not impose any new bright-line rules explicitly designed to 

prohibit employer access to and use of certain information. Instead, the 

Commission in this guidance continues to embrace the use of long-standing 

three factor test identified in the Green case when evaluating criminal history, 

and we discussed those factors earlier today.

These factors are familiar to HR professionals. Indeed, SHRM has not 

received significant negative feedback from its members about the guidance 

as a whole. Two specific aspects of the guidance, however, have been 

mentioned as areas of concern by SHRM and its members.

First, our members have expressed concern about the statement in the 

guidance that compliance with state and local laws will not shield them as 

employers from liability under Title VII. We appreciate preemption. However, 

this places employers between the proverbial rock and a hard place, between 

losing their state license or opening themselves up to liability if they don't 

comply with the state law mandating criminal background checks, and risking 

a class action if they go forward with the criminal background checks and 

base hiring decisions on the results.

We believe the state law requirements can fit within the EEOC's concept of 

targeted exclusion based on the Green factors and specifically allowed for by 

the guidance. We are hopeful that the EEOC will clarify the validity of state 

law requirements as lawful targeted exclusions or at least consider these 

concerns in exercising their prosecutorial discretion. We appreciate 

Commissioner Lipnic's96 recent written statement on this issue, which I 

understand has been submitted for the record.

Second, SHRM is concerned about the guidance interpretation of disparate 

impact. The guidance states, and I quote, "National data supports a finding 

 96 EEOC Commissioner Lipnic’s submitted public comment is available from the U.S. Commission on Civil 

Rights.
86 Introduction and Background

that criminal record exclusions have a disparate impact on race and national 

origin. The national data provides the Commission a basis to investigate Title 

VII disparate impact charges challenging criminal record exclusions," end 

quote.

It is not clear how imputing disparate impact based on national data can be 

reconciled with the recommended individualized assessment. Further, as 

written, it appears that employers may be vulnerable to EEOC investigation 

any time they take an adverse employment action against an individual of 

certain races or national origins based on criminal records checks, regardless 

of whether the employer has conducted a valid individualized assessment, 

seemingly making convictions a new protected status. SHRM believes this 

section should be clarified to help employers comply.

In conclusion, we believe the EEOC's guidance serves a very important 

societal interest, but that clarification in the areas mentioned would greatly 

benefit employers, employees and third parties who do business with 

employers. If the legal risks of conducting background checks are too great, 

then some employers may be reluctant to use them.

We believe hiring decisions are enhanced when employers are able to 

combine the information obtained by the candidate's resume and interview 

with additional verifiable information available through background checks.

RICHARD MELLOR, VP, LOSS PREVENTION, NATIONAL RETAIL FEDERATION: 

As the world's largest retail trade association and the voice of retail 

worldwide, NRF membership includes retailers of all sizes, formats and 

distribution channels as well as chain restaurants in the United States. We 

represent more than 3.6 million business establishments, 42 million workers, 1 

in 4 U.S. jobs, and $2.5 Trillion annually to the GDP.

My responsibilities at the NRF include communication of pertinent 

information for retail loss prevention, surveying members on important issues 

and to include background checks as one of them, facilitating educational 

conferences -- recently we've held two conferences to discuss these topics on 

the background checks and inform our members -- engaging law enforcement 

to help prevent retail crime, advocating for appropriate legislation to protect 

retailers better.

Prior to my position at the NRF I served as a senior loss prevention executive 

for more than 25 years in retailing, most recently at a national jewelry chain. 

As part of my responsibilities I directed the company's employment screening 

process to include applicant processing, testing and background 

investigations.
Criminal Background Checks and the EEOC’s Conviction Records Policy 87

Conducting this business in a professional and law-abiding manner is 

paramount in protecting the company brand and reputation. Over the past 

decade the use of background checks has increased steadily as retailers 

shoulder the enormous responsibility of securing the private data of 

customers, their safety and that of the employees, and protecting the company 

assets.

More important than ever before is the prevention of litigation and legal 

expense. Unnecessary expenses that stem from carelessness in employment 

related matters can have a huge impact on the company's financial stability. 

Employers are extremely careful to manage their employment process 

preventing even the slightest appearances of discrimination.

Social consciousness is a part of every retailer's business strategy. 

Employment practices and policies play an important role in creating a brand 

identity that encourages customers to want to shop and work for the company. 

Retailers, therefore, place a high priority on openly demonstrating fairness, 

credibility and serving the communities in which they do business.

As a result, hiring within the community is an important facet in perpetuating 

a healthy business environment. There is a fine line that retailers must walk 

between social responsibility and the obligation to protect customers, 

especially children, and to ensure the safety of employees.

A retailer who makes a decision to hire a former criminal who compromises 

customer private information has no protection under the EEOC guidelines to 

fall back upon. They will suffer the consequences, not the criminal that they 

hired.

The retailer who hires a delivery driver or a home repairman who has a 

criminal record for violence and theft and that person harms a customer or 

even an employee will again suffer the consequences and the liability for the 

crime. If a child is abused or hurt by a known sex offender in the company, 

the damage to the child and the retailer can be so severe that it can put the 

company out of business.

Statistics show that these types of criminal behaviors are often repeated and 

it's a high risk to employ such individuals. We are obligated to know these 

things about our employees. When these crimes do occur, the investigators, 

the prosecutors and judges always ask these questions. How did the person get 

access to that information, the restricted area, the merchandise or even access 

to the child? 

Sometimes this happens when the original job changes or a specific task is 

assigned without knowing the criminal history of the individual. A matter of 

discussing criminal history cannot be left to a chance opportunity hopefully 
88 Introduction and Background

addressed at a later date after an offer of employment and by someone not 

specialized in handling these conversations.

For those seeking to turn over a new leaf these conversations are better 

addressed by an HR professional before the offer of employment is conducted 

and when honesty and sincerity can be assessed appropriately. Oftentimes in 

retailing, that is a concerted effort to involve other parties in that decision 

making. That would not be the case if it's offered at the end of the 

employment process.

With a workforce of more than 42 million employees, retailers handle millions 

of applications each year and have worked diligently to provide opportunities 

and second chances for individuals committed to rehabilitation. Survey results 

show that approximately 95 percent of retailers conduct criminal background 

checks.

The question is, why do retailers spend an extraordinary amount of money, 

sometimes hundreds of thousands of dollars per year, in a tough economy, 

when it would be easy to say, save the expense? The answer, they've all 

learned by costly mistakes made in their own company and those in other 

companies as well. They seek to protect themselves against negligent hiring 

and the checks do provide a good opportunity for minority applicants.

We have heard stories of mistakes in identity but we can fix those things if we 

stay committed to improving the background check process. What we can't fix 

is the harm that is done by criminals and therefore we must, above all, protect 

those who put their trust in us. Background checks are an essential part of 

taking our responsibilities seriously. Retailers cannot fulfill their 

responsibility to us without doing the very best they can to vet potential 

employees who have access to our data, our homes and our children.

NRF believes the criminal background check question needs to remain on the 

employment application. This vital information is every bit as relevant as an 

applicant's education, previous employment, experience and formal training. 

That said, retailers have embraced individual assessment, I can say that.

In closing, I want to sincerely thank the commissioners for allowing us all, 

employers, employees, consumers and family members to express our views 

on this very important matter.

WILLIAM DOMBI, VP, LAW, NATIONAL ASSOCIATION FOR HOME CARE AND 

HOSPICE:

NAHC, as we call it, is a trade association representing tens of thousands of 

home care providers and hospices across the country. The issues involved in 

screening prospective employees' criminal record backgrounds have been 
Criminal Background Checks and the EEOC’s Conviction Records Policy 89

longstanding in health care presenting a myriad of challenges in complying 

with state and federal laws regulating the home health care community as a 

health service provider in addition to addressing their needs regarding best 

practices in employment and service to their customers along with fully 

respecting the civil rights of applicants for employment as well as the existing 

employees who may be on staff.

At the outset, let me state with total seriousness that my constituency and the 

Association fully supports efforts to ensure the civil rights guaranteed to 

employees and applicants for employment, but likewise, we support all the 

appropriate efforts to protect the highly vulnerable patient population served 

in home care along with the integrity of the numerous federal and state 

programs that finance this essential care.

In that regard, NAHC has a longstanding support for the use of criminal 

background checks as an employment screen for individuals who have direct 

patient care contact, access to health information on patients, responsibilities 

that relate to health care financing including payments to federal and state 

health care programs. Comprehensive criminal background checks are an 

essential tool for the home care provider in meeting their responsibilities to 

protect patients, payors, as well as their own organization.

It is fairly well known today what home care is. Some years ago people just 

couldn't distinguish us between Home Depot and health care in the home, but 

my assumption is that pretty much everyone in this room has been touched by 

home care in the last two decades, whether it's personal care services for their 

loved ones who are in their last years of life, hospice services for true end-oflife care, or as in my own personal experience, my father, my mother, my 

sister and my son, and most recently my mother-in-law as home care patients.

It is also very clear that that is an extremely vulnerable population of 

individuals. Home care is just what it says, care to individuals in their home. 

The vulnerable nature of that population is such that very often many of these 

individuals are just individuals in the home who open the door or have 

somebody give them a key to let them in the door, because these people are 

confined to a hospital bed or otherwise, to provide intimate and very 

important health care services.

It is a combination of high tech and high touch. Some of the most remarkable 

technology advances in health care have found their way into home care, but 

they haven't replaced the high touch aspect of personal care services to people 

who need assistance with activities of daily living. At the same time it's a very 

vulnerable payor population as well.

When we look at the issues of Medicare and Medicaid, today in particular, 

fraud, waste and abuse is way more than anyone would find acceptable. Even 
90 Introduction and Background

if you start with just one dollar as being acceptable we are dealing with 

billions and billions of dollars. So individuals who are entrusted not only with 

the care of elderly, disabled, pediatric, as well as populations of all ages need 

special selection when sent into individuals' homes.

Beyond that, home care is a small business. Yes, we do have some companies 

that are billion-dollar operations, but we have many, many, many more who 

are small operations, meeting the SBA's definition of a small business but 

meeting everyone's common sense definition of that as well. And with due 

respect to the testimonies that I've heard prior to this, counsel that I see sitting 

at this table, counsel who preceded the people at this table, the social scientists

as well, are not readily accessible to these small businesses to help in making 

these individualized determinations.

Asking the question, is this long enough after the conviction for the individual 

to then be employed to send to the home for your mother, is a very serious 

kind of matter but the resources are not there for these small businesses to do 

this. So instead, what happens is the businesses in home care look first to state 

and federal regulation.

We've talked a lot about preemption of state regulations today. In home care 

there is federal law requiring criminal background checks. All hospices must 

have a criminal background check of all employees who have contact with 

patients or sensitive health information as well as anyone they have as a 

subcontractor.

The Medicare conditions of participation require every home health agency to 

comply with all state and local laws, which then takes a state law requirement 

on criminal background checks and makes it a federal law requirement. In 

addition, over the last few years, the Congress has shown great attention to the 

issue of protecting the elderly in their homes who are receiving home care 

services, most recently through the Affordable Care Act extending the Elder 

Justice Act to require an expansion of a program that focuses in on criminal 

background checks.

Now I am in a slightly different world than I normally live, frankly, being here 

today. I'm a health care practitioner. My civil rights work ended with a school 

desegregation lawsuit back in the early '80s when the Supreme Court in 

Milliken v. Bradley stopped the opportunities to desegregate schools on an 

interdistrict basis. Disparate impact was never a viable standard in school 

segregation cases as well, but I'm back, you know, here talking a bit on civil 

rights.

And I had the opportunity to review the guidance which, I think, is an 

extraordinarily well written document for lawyers. I would publish it in any 

law review in any part of this country. But for my constituency, no chance of 
Criminal Background Checks and the EEOC’s Conviction Records Policy 91

understanding it, frankly. I think they would misunderstand it before they do 

understand it.

It was described as common sense guidance, but I don't see how it takes 50 

pages to describe something in common sense when, instead, my constituency 

reads such things as this month's Consumer Report, which I didn't read until 

this morning. Happened to take a few minutes before I came out here, and it's 

an article, it's all about protecting Mom and Dad's money, just the money part

of it. And it talks about how health care, home care in particular, is a high-risk 

area.

And so Consumer Reports, which is relied upon for common sense by people 

all across the country, writes as follows. "Make sure any caregiver you're 

considering undergoes a background check. Don't assume that the placement 

agency will do a thorough one. Insist on a national rather than a state criminal 

check. To monitor home help, consider installing a surveillance camera if the 

state law permits it." That's a common sense instruction.

And in line with that I'm concerned, as another member, of the chilling effect. 

I submitted testimony, which I offer as a series of recommendations, which 

suggest a collaborative effort between the health care regulators and the 

EEOC. I think there is a ground that can be found common among all them. 

So thank you for the opportunity today.

QUESTIONS BY COMMISSIONERS

CHAIRMAN CASTRO: 

Mr. McCracken, you were talking about -- I think everyone mentioned it, but I 

think you were the first to go into depth about the alleged conflict between the 

guidance and adherence to state requirements that there be background 

checks. Now again, as I asked earlier, I don't think anyone here is saying, the 

EEOC is not saying that you can't do background checks. It's saying, this is 

how you do them and not violate Title VII.

So I don't know if you were here earlier for Ms. Miaskoff's presentation, and I 

believe when she presented orally she stated this, but in her written 

presentation to us she said that Title VII prohibits disparate impact 

discrimination. And it also includes language that preempts state or local laws 

when those laws, quote, "purport to require or permit the doing of any act 

which would be an unlawful employment practice under the statute. 

Therefore, if an employer's exclusionary policy or practice has a disparate 

impact and is not job related and consistent with business necessity, the fact 

that it was adopted to comply with state or local law does not shield the 

employer from Title VII liability."
92 Introduction and Background

Presumably these state laws that require background checks in certain 

instances are doing it because they feel in those instances there is a business 

necessity, is that not right? And that it is consistent with the job so it's job 

related, right? So that would seem to me that in those instances the issue of 

Title VII liability would not be there because they're allowing you to do the 

background check. They're not saying you can't at the federal level. As long as 

it's consistent with business necessity and job related it's not violating Title 

VII.

So I don't understand where that conflict resides, because presumably if you 

do the background check you're going to do it for those reasons. You're not 

going to do a background check that's not going to be job related, right, and 

that has nothing to do with business necessity, right?

MR. MCCRACKEN: 

I'm not an attorney so I'm not going to give you a legal opinion about that. But 

I do know a lot about small businesses, and I will tell you that you can walk 

them through something like that and get them to a correct conclusion. But 

when they're making a decision in the field they have to feel confident

[making a decision on their own], for instance, if they feel that there's a 

conflict between both laws.

The EEOC rules, as I understand them, require a level of judgment. You have 

to make some decisions about whether or not the background checks are 

directly related to the job, and a whole series of judgment calls that you have 

to feel confident about as a business owner, and to understand the law.

And that's our most significant issue is confusion. Small businesses need 

clarity and simplicity in terms of how they need to comply with these 

requirements, and then make sure they understand where the conflicts are or 

are not between state laws. 

CHAIRMAN CASTRO: 

Mr. Segal, you mention in your presentation an example of a [British 

Petroleum cleanup] contractor for whom a background check was not done 

and then they committed a rape. Are you suggesting that that background 

check was not done as a result of some confusion about the EEOC's guidance?

MR. SEGAL: 

No, I'm not suggesting that [happened in that case], sir. I am suggesting that, 

because of some confusion with regard to the guidance, it's possible that a 

contractor would not perform a background check that they otherwise would 
Criminal Background Checks and the EEOC’s Conviction Records Policy 93

and that clarification with regard to the issues that we have raised would be 

helpful.

CHAIRMAN CASTRO: 

Hypothetical on your part. You're conjecturing that that might happen in

another case.

MR. SEGAL: 

No. I would suggest, respectfully, it's not hypothetical but that there is the 

potential for employers to refrain from conducting appropriate background 

checks if there is confusion over the guidance, and what we're hoping for is 

that the EEOC will provide clarification so that the respective rights of 

employers and applicants can be balanced.

CHAIRMAN CASTRO: 

That was not the case in the BP example.

MR. SEGAL: 

I'm not familiar with all of the background of the BP hiring process.

COMMISSIONER KIRSANOW: 

Were any of you witnesses at the EEOC hearing?

(No response.)

COMMISSIONER KIRSANOW: 

Nobody? Were any of you invited to testify at the EEOC hearing? Were any 

of you asked to submit written comments at the EEOC hearing? No?

MR. SEGAL: 

Yes.

COMMISSIONER KIRSANOW: 

Okay, SHRM was invited to submit comments but none of the rest of you 

were. Written comments, okay, and you supplied written comments. I've got a 

number of questions but I'll defer to others. Really, I've got a number and I 

hope I have the chance to follow up.
94 Introduction and Background

Mr. Segal, you talked a little bit about the tension between disparate impact 

and individualized assessment.

MR. SEGAL: 

Yes, sir.

COMMISSIONER KIRSANOW: 

I'd like you to kind of elaborate upon that because the way I look at it, if you 

look at the case -- I don't know if you're familiar with Ricci versus DiStefano 

where you had an employer that engaged in disparate treatment in order to 

avoid potential liability on disparate impact because its numbers weren't right 

-- can you tell me a little bit about the potential for that kind of problem where 

this might, if not encourage disparate treatment, shade toward that in order to 

avoid a disparate impact liability lawsuit?

MR. SEGAL: 

Perhaps it would be helpful to start with the guidance. The language from the 

guidance provides that national data such as that cited above supports a 

finding that a criminal record exclusion has a disparate impact based on race 

and national origin. The national data provides a basis for the Commission to 

further investigate such Title VII disparate impact charges. During the 

investigation the employer would have the opportunity to show that its 

employment policy or practice does not cause disparate impact on the 

protected group.

So as I understand the language, there would be the possibility for one adverse 

action to result in an investigation based on a disparate impact analysis. We 

have concerns about this language as previously noted. We believe the 

reasonableness of the guidance ultimately will turn on the reasonableness of 

the prosecutorial discretion in enforcing it.

COMMISSIONER KIRSANOW: 

Mr. Fishman, you said something that really interested me. You said that 

when you issue reports to your clients of criminal background check,

protected-class information [race, sex, age, etc.] is not contained therein, and 

suggests to me that what's happening is clients are sometimes blind to the 

actual applicants’ [race, sex, disability, etc.].

They simply do an initial screen to determine whether or not someone has a 

criminal background, correct? If that's the case, if clients don't know the 

protected class information how could there be a disparate impact issue?
Criminal Background Checks and the EEOC’s Conviction Records Policy 95

MR. FISHMAN: 

I can't answer that question. It would seem that there wouldn't be.

COMMISSIONER KLADNEY: 

As Commissioner Kirsanow [said], my cup runneth over with questions, and I 

don't know if I'll have enough time to ask, but I appreciate this panel and its 

input. And I would like everyone to know I support criminal background 

checks. I think they're good and I think they're worthy, worthwhile.

I wonder though, Mr. McCracken, you said that your group, and I assume it's 

a big association, didn't quite grasp the analysis of the guidance, is that 

correct, of how you go through the analysis of a criminal background check?

MR. MCCRACKEN: 

I was saying it's not clear for small businesses.

COMMISSIONER KLADNEY: 

And as an association do you find it to be incumbent upon you to 

communicate that information?

MR. MCCRACKEN: 

Well, sure. We try to communicate all kinds of information to our members. 

But the reality is, all kinds of businesses in different states are all in different 

situations, and so ultimately it's up to a business owner to make a whole series 

of judgment calls on these issues and there's only so much that a group sitting 

in Washington can help them with.

COMMISSIONER KLADNEY: 

Have you done any of that work?

MR. MCCRACKEN: 

That's why we consistently advocate that federal agencies at all levels be clear 

and consistent and as simple as possible on communicating what businesses 

have to do. Because you have to remember, this isn't the only thing that 

they're having to worry about and it's typically the business owner, him or 

herself, that is having to think through these issues and make these decisions.
96 Introduction and Background

COMMISSIONER KLADNEY: 

My question really is based upon Mr. Segal's analysis saying that the Green 

factors are not that difficult to apply. Is that correct, Mr. Segal? That's what 

you said, I think, in your statement.

MR. SEGAL: 

Based on the testimony we have heard today, we can see that there are 

competing considerations that employers must consider in making these 

difficult decisions. We believe employers can apply the Green factors but 

there will be times that, based on them, targeted exclusions will be 

appropriate. But the Green three-factor analysis in and of itself is not new.

COMMISSIONER KLADNEY:

It's been for 20, 30 years.

MR. SEGAL: 

Overall the guidance is largely a restatement of existing law and SHRM has 

not received substantial concerns raised by its members. In our experience, the 

result has been that most members are taking a closer look at the Green factors 

in making individualized assessments and in determining where targeted 

exclusions may be appropriate.

COMMISSIONER KLADNEY: 

Thank you. And then the background checkers, I'm wondering, you know, 

obviously you're professional background checkers and you do a very 

professional job. My concern is, what are your thoughts regarding regulating 

internet scrubbers [criminal background checkers] where businesses get online

and do their criminal background checks with these organizations, well, dotcoms on the internet? What's been your experience with that?

MR. FISHMAN: 

I don't have a lot of experience with that. They operate under an entirely 

separate set of circumstances than we do as employment background 

screeners, and it's an entirely different animal altogether.

COMMISSIONER KLADNEY: 

Is it reliable?
Criminal Background Checks and the EEOC’s Conviction Records Policy 97

MR. FISHMAN: 

I don't know the answer to that question because I'm not familiar with all of 

them. I would say it's less reliable than that which we engage in as 

employment background screeners.

COMMISSIONER KLADNEY: 

Ms. Miller?

MS. MILLER: 

When you say internet scrubbers I think the devil's in the details, probably, as 

to what exactly you mean, because I'm not quite familiar with that.

COMMISSIONER KLADNEY: 

Well, I prefer not to use any company names. But if I put “Montserrat Miller”

in [a search engine], up pops as the very first thing, come here and find out 

about Montserrat Miller’s background.

MS. MILLER: 

You would fall outside of the Fair Credit Reporting Act [if you did that]. So, 

if you were to find information out about me [that way], you would not be 

protected because I wouldn't have all the rights that [are due me] under the 

Fair Credit Reporting Act.

COMMISSIONER KLADNEY: 

So do you believe that small business should be made aware of that and 

business should understand not to use these internet scrubbers in terms of 

providing criminal background checks? Would that be your recommendation?

MS. MILLER: 

That's a good recommendation. As an association we do quite a bit of 

outreach and education. We've done outreach and education on the EEOC 

guidance and we do it on other issues as well such as doing the perils of doing 

your own Google searches, because of the fact that the individuals upon who 

you are doing them may not know. And not only do you fall outside of the 

Fair Credit Reporting Act, but there are EEO [Equal Employment

Opportunity] considerations as well when you look at that type of information. 

So we do certainly try to educate as to the perils of doing searches outside of a 

professional background screening company.
98 Introduction and Background

COMMISSIONER KLADNEY:

One more question to Mr. Fishman. When you said an EEOC lawyer gave

some guidance for people not to do criminal background checks, do you know

what context that was given in?

MR. FISHMAN:

It was reported in the Chicago Tribune, and then has been reported in several

other areas. I don't know the context. I just know that the direction was that

employers better think twice before conducting a background check.

COMMISSIONER KLADNEY:

Was it a direction or was it, if you don't know the context how do you know it

was a direction?

MR. FISHMAN:

I guess I can't answer that question [right now].97

COMMISSIONER GAZIANO:

Thank you all for your wonderful testimony. And before she walks away, I

also want to publicly thank Lenore Ostrowsky for her work on this panel and

putting together such outstanding panels that, I think, represented the various

views much more than seems to have been before the EEOC. And I think the

record also reflects that the Commission reached out to commissioners of the

EEOC. Some of them have submitted written testimony. I would have

appreciated hearing from them [today] as well.

I think the last panel was unanimous that the purpose of the EEOC rule was to

act on its hunch, since they didn't have the relevant data, and to increase the

costs on businesses that wanted to use criminal background checks.

And there're many costs. One of them as it's been remarked on is the

individualized attention cost of screening, but what I'm really worried about is

the cost of acting on the results of screening. Of course everyone said, well,

they can still do it, they can still do it.

97 Mr. Fishman supplied the referenced news article reporting the statement: “If companies ask job applicants

about their criminal histories they could face discrimination lawsuits.” John Hendrickson, the regional attorney

for the EEOC’s Chicago district said, “I would suggest to (businesses) that they think long and hard about why

they think they need to do a criminal background check,” insinuating that if they felt it was not required, they’d

be safer not doing it.” http://www.humanresourcesjournal.com/2012/10/eeoc-asks-employers-not-to-hold-thecriminal-past-of-job-applicants-against-them-give-them-a-second-shot-at-life-it-says/
Criminal Background Checks and the EEOC’s Conviction Records Policy 99

But the problem with the guidance is an increase in litigation risks, an increase

in legal risks, to try to -- through the guidance -- create a standard that a court 

might apply, so that if someone actually acted on the criminal background 

check there's increased liability.

And one of the factors I want to concentrate on with this panel is the EEOC’s

reversal of the precautionary principle [requiring avoidance of any possible 

harm to the public] that we normally have in government regulation, the 

various types of precautionary principles. Let’s take an EPA regulation. 

Congress generally writes it. The agency then [interprets it by insisting on risk 

avoidance to an extreme degree].

But there are some conditions where if there's a risk of cancer no matter how 

infinitesimal, by so-called "Delaney Clauses," EPA requires the companies to 

eliminate any risk. In the Clean Air Act there are some other extreme 

precautionary principles where the government says if there's even a very 

small risk that public health will be affected that the company must expend 

enormous amounts of money [to abate it].

But it seems to me that this EEOC guidance has the strangely opposite effect. 

It tells companies who may have a precautionary principle [risk avoidance 

principle] of their own -- and I'm particularly directing this to you, Mr. 

Mellor, because it seemed to dovetail with some of your testimony-- that you 

better abandon your precautionary actions.

And one little factor in the guidance seems to suggest that the offense that you

consider disqualifying has to be really kind of close [relevant to the job’s 

duties]. One of the reasons that worries me is because I think most of us know 

a lot of [criminal] convictions are also pled down [i.e., the initial offense was 

reduced to a lesser offense to obtain a guilty plea].

In the remarks of one of the witnesses in the prior panel, we learned that

they're facing a multi-million dollar lawsuit because they hired someone as a 

security guard with a [prior] misdemeanor [offense] who after being hired as 

the security guard for a gated community was caught taking pictures of an

underage woman undressing. Well, it turns out that his prior misdemeanor 

was pled down from a “peeping tom” charge.

So Mr. Mellor, could you comment on how the guidelines skew the normal 

risk [avoidance] precautionary principle decision-making of a firm and 

whether you think that's a good idea or a bad idea?

MR. MELLOR: 

Commissioner, I'm not sure I understand the question.
100 Introduction and Background

COMMISSIONER GAZIANO:

If a company would have, before the guidelines, applied a framework of 

relatedness to the type of crime, how would the guidelines tend to affect a 

company's decision when they have to factor in the possible liability for 

disparate impact litigation?

MR. MELLOR: 

I'm assuming that you're speaking about prior to the guidelines where 

companies -- and there's been lots of conversation about this -- have put out a 

blanket sort of matrix that we do not employ people with this type of criminal 

history and apply that across the landscape, perhaps, of the whole company.

And I can comfortably say this after doing it for good number of years myself 

and involved with other people in retailing that actually conduct the 

background checks, comfortably say that even before the guidelines came out, 

and I happen to feel that the logic involved with the guidelines is well founded 

and that maybe it's a little bit behind the curve from the standpoint that 

retailers in particular have evolved out of those blanket policies and how they 

apply them across the landscape and do spend considerable time now 

analyzing what the Green factors are before even being asked or guided to do 

that.

In my comments with regard to how that gets done and when it gets done, I 

focused on the fact that this is better done by corporate type people who have 

their head on straight, can analyze this information properly and interact, often

with me on the telephone with the applicant, because some of these interviews 

take place far away from them.

But there are other people that become involved in that decision making and 

collaborating on whether this is a sensible risk and could we take it and would 

this job be a disqualifier for this particular individual. I don't know that I've 

answered your question.

COMMISSIONER GAZIANO: 

Let me rephrase it and open it up to anyone. Does anyone want to comment on 

whether they think these guidelines tend to require companies, as an economic 

matter, to increase their risk in hiring to decrease their risk of a disparate 

impact lawsuit?

MR. SEGAL: 

In my experience, as an attorney who advises clients and in SHRM's 

experience, this has not resulted generally in employers discontinuing use of 
Criminal Background Checks and the EEOC’s Conviction Records Policy 101

the background checks. What we have seen as employers looking to the 

guidance as just that and in reviewing more carefully the Green factors.

But, ultimately, I believe that the reasonableness of the guidance will turn on 

the reasonableness of the prosecutorial discretion in terms of enforcement, and 

that may have an impact on whether employers continue to use background 

checks. I'd rather see employers use professional background checks than 

simply search the internet and come up with what may be invalid information.

COMMISSIONER ACHTENBERG: 

Before asking Mr. Dombi a follow-up question to his testimony I just want to 

say that we don't have any information in our record or otherwise that would 

suggest that the EEOC in its various capacities, including whatever factfinding it undertook before promulgating the various guidelines that it was 

certainly entitled to promulgate, failed to, merely because it didn't invite 

everyone on this terrific panel -- and by the way thank you all very much for 

all the observations that you have proffered before our little committee here --

merely because it didn't ask everyone on this panel to participate specifically 

in its fact-finding does not support the assertion that somehow its fact-finding 

was skewed. And I just wanted to make that observation for the record.

Mr. Dombi, having recently lost many family members in my own family and 

had to supervise home health care that needed to be provided during their last 

illness, I'm very knowledgeable about and sympathetic to the plight of the 

lawyer who advises home health care providers and hospice providers, and I 

understand what a difficult situation that might put you in.

Could you talk a little bit about how a collaboration between a group like your 

industry group and the EEOC might be furthered so that home health care 

providers might do just the right kind of background screenings so as to 

enhance safety while not inadvertently or otherwise doing harm to exoffenders who have a right to have their criminal backgrounds assessed 

properly by a prospective employer?

MR. DOMBI: 

The state regulation as brought into federal play varies from state to state. 

Some states have automatic exclusion, and I think we would support a safe 

harbor where a state's made that kind of a judgment there, and I think it would 

be an easy call for everybody on that. But beyond that a number of states take 

certain criminal offenses and then allow them to be taken into consideration.

I learned more here today about what [one] you should be considering than I 

knew coming in, by far, and I think the collaboration that I would suspect 

would be very helpful would be, you know, the parties to get together to try to 
102 Introduction and Background

outline in more detail, with better clarity, how you take into consideration 

whether an offense has a connection to the risk that you have in an individual 

going into a home setting, the issue of the time frame, you know, and 

obviously you should let the individuals, perhaps, receiving the services make 

the ultimate judgment, but it appears there is some science that says that after 

a certain period of time someone with a record is no longer a greater risk than 

someone without a record. And so that, you know, would be certainly one way 

to go about it.

But beyond the collaboration in terms of what is told to individual companies 

is the health care system itself [that] has a huge communications network. 

Medicare, for example, routinely puts out something they call the MedLearn 

articles, which are guidance instructions and they have contractors there who 

engage in training and the like.

And so the EEOC combined with HHS [U.S. Department of Health and 

Human Services] in doing some training around this, I think, would go a long 

way to alleviate what I know would happen, that chilling effect. If my 

constituency read this they would be wondering, what's changed and what 

have I done wrong and I better do something different, so teach me what I'm 

supposed to do, because that's all they're really looking to accomplish is to 

meet the standard.

One of the things they'd have to work out between themselves is one that I 

don't have an answer to and that is that yes, criminal background checks are 

used in home care. They are mandated, by and large. Decisions are made 

when it's discretionary to select from one offense or another, but the majority 

of the workforce, ultimately, that's in home care are actually in protected race 

categories. They are African American. They are Hispanic.

This is job not a lot of people want, and home care companies are searching 

high and low to get people to do the job. You know, for $10 an hour to clean 

up after an incontinent dementia patient you're either a saint or you're 

desperate. Fortunately we have a lot of saints providing home care.

So trying to figure out how is that disparate treatment in that situation would 

be, yes, deny a criminal record background candidate employment and accept 

another one who happens to be actually of the same race or may actually be of 

a protected class of the one that you've denied. My constituency doesn't 

understand disparate impact, doesn't understand that tough decision, and 

maybe together the EEOC and the Department of Health and Human Services 

can help guide them because they do want to comply.

CHAIRMAN CASTRO: 

I'll direct this to Mr. Mellor, but anyone else, feel free to chime in as well. In 
Criminal Background Checks and the EEOC’s Conviction Records Policy 103

the materials that we've received and in some of the testimony we've heard 

earlier, although we haven't spent a lot of time on this, there have been issues 

raised about the inaccuracies of some criminal records and arrest records or 

the lack of clarity of some of those and, you know, wrong people being 

considered as the criminal compared to the actual person who's applying for 

the job.

And I believe, Mr. Mellor, in your remarks you said well, you know, we can 

fix those inaccuracies. It seems to me that the reason for the individualized 

assessment is to kind of address that to fix these inaccuracies, which exist 

probably in various layers of government data and criminal records, has got to 

be an overwhelming task, maybe even more overwhelming than an 

individualized assessment.

How would you propose that we fix these inaccuracies? I believe if they could 

have been fixed easily that would have happened. Do you have some ideas 

and recommendations on how to do that?

MR. MELLOR: 

Well, I certainly agree with you, Mr. Chairman. It's not an easy task to do it 

and I wasn't trying to imply that it was an easy task. If we put our minds to it, 

we work together, the professional organization for background screeners is 

certainly tasked and working on that to collaborate with the retailers and the 

other organizations represented here, I think that that's a task that we can 

tackle, work on, collaborate with this Commission as well as the EEOC to 

kind of push forward and see if we can't do something about this.

My personal experience with doing the background checks over a pretty long 

period of time, the folks that work for me doing that were tasked to go to 

every degree they possibly could to validate the information to include 

personal visits to courthouses and so forth. But it always, always included 

conversations with the individual that was applying for the job and whatever 

information they had placed on the application. In some cases it was 

understated on the application; in other cases it was very clear.

But to the point of trying to be precise in the identification of who the 

individual was, in my experience and in my management of that process, we

absolutely wouldn't go forward with a decision if we couldn't validate it 100 

percent. Now I'm not suggesting that that doesn't happen out there. I think it 

does. I'm pretty comfortable saying that. But as I made reference to in my 

remarks, there isn't a company that's willing to take a risk at doing something 

that's going to result in litigation such as being confronted with the EEOC or 

other attorneys saying your information was inaccurate and this is what 

resulted.
104 Introduction and Background

So I don't suggest that this is easy to do, but I think the collective minds could 

put their heads to this. And it took a long time for the guidelines to be reissued 

and I think it'll take time for us to get where we need to be on validating this 

kind of information in background checks.

MS. MILLER: 

Accuracy of the reports is paramount. It's what is required by the Fair Credit 

Reporting Act, maximum possible accuracy.

Contrary to popular belief, and as reported in the media, our member 

companies report to me 99 percent accuracy rates. So that means that when a 

consumer disputes a consumer report, and that might include criminal history 

information, only one percent of consumer reports are disputed, and of that 

one percent an even smaller percentage actually require a correction. So as far 

as the individualized assessment, that doesn't replace the Fair Credit Reporting 

Act procedures.

And under the Fair Credit Reporting Act an individual has not one but two 

opportunities to correct the information in the report if there is an inaccuracy 

or incomplete information. It’s rare that the reports are inaccurate. Not one

[opportunity to correct] but two.

So the first bite of the apple is, if a report is done, and mind you, under the 

Fair Credit Reporting Act that requires your consent. [Your consent is also 

required to do] the criminal history check.

There are multiple steps that then begin to kick in and those steps are 

requirements [that apply to] background screening companies and consumer 

reporting agencies, are actually defined under the Fair Credit Reporting Act, 

and place responsibility [for complying]on the employers. And those 

responsibilities of the employers would be that they provide individuals with a 

pre-adverse action notice if during the process any information, in whole or in 

part, is going to be used from that report that might adversely affect the 

individual and that might include criminal history information.

So the first opportunity is what's called the pre-adverse action notice. 

[Applicants are] provided a copy of their report, a copy of the summary of 

their rights under the Fair Credit Reporting Act, and they can contest the 

information if it is inaccurate or incomplete. And then the next step would be 

[an] adverse action process if they will be denied employment based on the 

report.

What is causing some confusion with the guidance is that the guidance has the 

individualized assessment. So what is very new, at least in my opinion, is that 

there is this concept under the EEOC's guidance that in order to avoid Title 
Criminal Background Checks and the EEOC’s Conviction Records Policy 105

VII liability you could do either a validation study, which the guidance itself 

says, but there's not enough social science in order to do a validation study, or 

you can do a matrix and an individualized assessment. This is a new concept 

provided by the guidance. 

That causes confusion for employers because then they say well, wait a 

minute, what happens to the [requirements of the] Fair Credit Reporting Act? 

So I don't think that was intended, but the unintended consequence is 

employers now are faced with, well, do I follow the Fair Credit Reporting Act 

or do I follow this guidance, I'm not quite sure. And what I hope doesn't 

happen is that consumers aren't afforded the rights because of confusion with 

the guidance.

But there are two separate processes, and the Fair Credit Reporting Act, which 

has been around since the '70s, has provided many protections for consumers 

when background checks are done and it already has what you could say 

would be similar to an individualized assessment, although under the Fair 

Credit Reporting Act what you're looking at are inaccuracies or incomplete 

information in the consumer report which the consumer can then challenge 

and background screeners have a duty to reinvestigate that information and 

provide correct information. But again the inaccuracy rates are very low.

MR. FISHMAN: 

I would just echo those same sentiments. They do have an opportunity, if 

there is an error in the report, to be able to dispute that information.

In addition to that as far as the misidentification, if you will, I can only speak 

for a company like my own where until we're able to confirm identifiers 

meaning name and date of birth, name and Social Security or any combination 

thereof, we're not going to report a record.

So that's how you eliminate that kind of thing is that you pay attention to those 

identifiers and ensure that they actually belong to the applicant before it's been 

reported.

COMMISSIONER KIRSANOW: 

So far on all the panels I haven't heard anybody say that, you know, there 

shouldn't be background checks done, and I haven't heard anybody say that 

they oppose reintegration of criminals into society. The real question is -- let 

me repeat myself -- I haven't heard anybody say that they don't feel criminal 

backgrounds should be done nor that we don't support reintegration of those 

with criminal records into society. And the question, I think, is whether or not 

the EEOC guidance is a smart way or the best way or even a decent way of 

doing this.
106 Introduction and Background

I want to pick up on something that I think Commissioner Kladney had asked 

of Mr. Fishman. I think it was interesting. Mr. Fishman talked about the 

EEOC lawyer who was quoted in the paper, Chicago Tribune, as saying if 

you're thinking about doing a criminal background check you better think 

again.

We've heard about certain instances related to concerns about ambiguity of the 

guidance. I think it was Mr. Dombi who said it’s a 55-page guidance that was 

beautifully written for lawyers. I would like to ask Mr. McCracken, Mr. 

Mellor and Mr. Dombi, with respect to small businesses, when a small 

businessman -- I appreciate he doesn't know the context in which an EEOC 

lawyer may say something -- when a small businessman hears or reads that an 

EEOC lawyer, as the character in Lincoln says, "clothed in immense power," 

says you better think twice about using a criminal background check, how 

does that person construe that statement and what actions does he take as a 

result?

COMMISSIONER KLADNEY: 

This is the quote out of context, and we don't know what context it was given 

in. "I would suggest to," open parens, "businesses," close parens, "that they 

think long and hard about why they think they need to do a criminal 

background check." If you look at the guidance I guess that would tell you 

why.

COMMISSIONER KIRSANOW: 

Yes, long and hard. If an EEOC lawyer says they better think long and hard, 

long and hard before they think about doing a criminal background check, 

Mom and Pops there, doesn't have an HR department, doesn't have access to 

big-time lawyer, how does he construe it normally?

MR. MCCRACKEN: 

You have to realize these are very small-business people, which no one would 

be surprised to hear, do operate largely on conventional wisdom, on what they 

hear, what people tell them, because as you say they don't have the time and 

the resources. I do think it has the potential at least to have a chilling effect on 

some companies that should and might be able to conduct criminal 

background checks legitimately that will choose not to.

And that will have, you know, potential consequences for whether [the 

business is] staffed down the road. And that will be hard to quantify because 

it's hard to know what didn't happen.
Criminal Background Checks and the EEOC’s Conviction Records Policy 107

But I do think that's a real [problem] because very much in the small business 

sector, there is sort of an accepted wisdom that comes from somewhere, like 

newspaper articles like this, that really does shape how people behave.

MR. DOMBI: 

I think my constituency is unique compared to some of the others that were 

referenced here. The enlightened ones would call me and say, what did that 

mean? And then I might be able to explain it to them. Others would say, what 

is that EEOC person talking about? It's pretty clear why we have criminal 

background checks in health care. And then the vast majority probably would 

be unfazed and they would recognize in a common sense way [the necessity] 

to do a criminal background check and to make the right judgment to keep 

their patients safe.

It's a priority for them. Patients first, payors second, business third, so a 

prospective employee would probably be denied employment still even after 

seeing that [news article].

MR. MELLOR: 

With regard to small businesses the National Retail Federation represents a lot 

of one-store business owners, and with regard to that I would say we suspect 

they would opt out and not do a background check. That's our fear, because 

they're fearful of not being able to do this process appropriately and not to rely 

on their instincts for their employment decisions.

COMMISSIONER KIRSANOW: 

Do many of your constituents have employment practices, liability insurance 

or anything similar in case your friendly neighborhood EEOC investigator 

comes knocking on the door?

MR. MELLOR: 

I'm not able to say that for sure, but I would think not.

MR. DOMBI: 

In health care, it's in the marketplace, I mean and a lot of the brokers and 

longer-standing home care providers would likely have purchased it along 

with directors' and officers' liability, general liability, and it's in a package that 

many of them acquire today.
108 Introduction and Background

COMMISSIONER KLADNEY: 

I personally think the quotation means to go ahead and do one because you're 

supposed to do one. Think long and hard why you should do one, and you 

need to do one. But I guess beauty is in the eye of the beholder, 

Commissioner.

COMMISSIONER KLADNEY: 

In your submitted statement, you said there's no relief or consideration for 

employers that have state law conflicts. Since 1987, when the initial guidance 

came out, do you have any cases to back that up?

MR. FISHMAN: 

Well, that was referring to the new guidance.

COMMISSIONER KLADNEY: 

Okay, the new 2012 guidance. Any cases?

MR. FISHMAN: 

Not that I'm aware of. I think that one of the earlier panelists mentioned the 

fact though that she was caught between a rock and a hard place. I believe it 

was Pennsylvania law and the EEOC guidance.

COMMISSIONER KLADNEY: 

That actually had to do with the Pennsylvania law that merely provided a 

background check but not exclusions.

THE COMMISSION THEN ADJOURNED.

***
109 Speakers’ Statements

Alfred Blumstein

Statement of Alfred Blumstein (Carnegie Mellon University) and 

Kiminori Nakamura (University of Maryland)

Before the United States Commission on Civil Rights – December 7, 2012

Most important public policy issues involve complex trade-offs, often reflecting the tension 

between private interests and public interests. That is certainly the case involving the use of 

criminal-history records. Employers would like to be able to use whatever information they 

can obtain in order to assess the quality of individuals applying for an open position. On the 

other hand, the EEOC, acting in accord with Title VII of the Civil Rights Act, has established 

limits on the use of criminal-history-record information in order to diminish the disparate 

impact of such record information on racial minorities, by requiring that the use of such 

information be relevant to the business necessity of the employer.

One important facet of those limits is the timeliness of that record information. It is widely 

recognized that the longer an individual with a prior record has avoided contact with the 

criminal justice system, the less is the risk that he will commit a crime in the future. This has 

resulted in tension between groups representing employers and groups representing 

individuals whose latest record information is quite stale and no longer relevant to the 

position for which they are applying. Resolving that tension requires empirical evidence on 

how much their risk has declined over their time clean.

The research that I have been pursuing1

 along with Kiminori Nakamura of the University of 

Maryland provides a basis for making such estimates. Starting with criminal-history-record 

information or “rap sheets” of 88,000 people arrested for the first time in New York in 1980, 

we have estimated their “hazard function”, or the probability that they will be rearrested for 

the first time as a function of how long they have stayed clean. This has enabled us to 

compare that hazard function or their risk of rearrest with the risk associated with two 

benchmarks: 1) the risk associated with general population of the same age and 2) the risk of 

people with no prior record. This analysis has enabled us to estimate what we call a 

"redemption time" when their risk of a new arrest drops below or “close enough” to our 

benchmarks. That redemption time typically runs about four to seven years for the first 

benchmark, depending on the age at and the crime type of that first arrest, and somewhat 

higher for the second, more stringent benchmark. 

One might question the contemporary relevance of recidivism estimates based on a first 

arrest in 1980 in New York, so we have tested the robustness of our findings by examining 

first arrests in 1985 and 1990, and in Florida and Illinois. In that robustness testing2

 

1 See items 1), 2), and 4) in the list of references below. All are attached to this submission.

, we find 

reasonable differences in the first five years, but much greater similarity after those five 

2 See slides 15-16 in the PowerPoint presentation (Reference # 1 below).

SPEAKERS’ WRITTEN STATEMENTS 
110 Speakers’ Statements

years, reflecting a recognition that most recidivism occurs within five years, and usually 

within three years.

Our initial analyses were based on a second arrest for any crime type. Our later research 

provided a basis for estimating redemption times based on an employer's concerns about 

particular crime types3

, specifically property crimes or violent crimes, again depending on 

the age and crime type at the first arrest. In that analysis, we find that the redemption time for 

those whose first crime was violent will be longer for an employer concerned about violence, 

whereas, if the employer’s primary concern is about property crime, the redemption time is 

appreciably shorter and the variation associated with the earlier crime type is far less salient. 

Also, we find that the risk associated with older first-time offenders is less than that of 

younger offenders.

These observations are based on the results of our analyses, some of which are displayed in 

the PowerPoint slides that we have distributed to the Commission. Obviously, we can 

generate estimates of redemption times as a function of the various parameters characterizing 

the information in the criminal history record. These parameters would include the age at the 

first arrest, the crime type of the first arrest, or the employer’s risk tolerance. We also have 

estimates for the two comparison benchmarks we have identified, the general population or 

the population with no prior arrests. 

We should also point out that, since most jurisdictions limit the use of criminal history 

records based on a prior conviction, our analyses are based on individuals convicted – not 

merely arrested – following their first arrest. Since the concern about a future crime is based 

on a probability rather than on a particular individual’s future crime, we focus on the 

probability of arrest rather than conviction. We should also note that the hazard function or 

future risk profile for the individuals convicted is very similar to that of the individuals 

arrested, although, of course, they represent a smaller population. Of our total sample, about 

40% never had a second arrest.

We were also concerned about the possibility that individuals who stayed clean in New York 

might have been arrested elsewhere, and so we sent the FBI a sample of those with no further 

arrests in New York and found that about 23% of them had experienced arrests in another 

state, and that required us to correspondingly increase our estimate of the hazard function.

One of the important considerations in estimating redemption times is the possibility that 

individuals might have been incarcerated and therefore not vulnerable to a second arrest 

during that incarceration time. In our sample of first-time arrestees, only about 16% were 

ever incarcerated and 74% of those were sent to a local jail for a fairly short time, and so our 

estimates have not been distorted by that incarceration. Our current research is focused on 

first-time releasees from prison, and so we are dealing with people with more elaborate prior 

history records and with a risk of future incarceration that could well change our estimates of 

their rearrest.

 3 See slides 17-20 in the PowerPoint presentation (Reference # 1 below).
Criminal Background Checks and the EEOC’s Conviction Records Policy 111

The question then arises how one might make use of these analyses in shaping public policy. 

Obviously, it is important that employers using criminal record information be made aware 

of these findings and the low risk associated with individuals who have stayed clean long 

enough. This is particularly important because of the widespread use of criminal-history 

checking, and especially so in light of the surprising prevalence of arrest. Some 40 years ago, 

it was estimated that a male had about a 50% chance of being arrested some time in his life, 

well above what anyone could have imagined, and that was well before we had any sizable 

number of arrests for drug offenses and for domestic violence. 

Also, state repositories might want to limit access to criminal history record information to 

employers who might treat them as more salient than is warranted. The repositories might 

choose to restrict their dissemination after reasonable redemption times have passed. 

Alternatively, they might include with the record information some documentation about the 

associated redemption times. One might hope that commercial organizations would follow 

similar policies.

It would also be most desirable for states to enact statutes that protect employers who adhere 

to reasonable redemption times from lawsuits claiming negligent hiring.

One particular target of our analyses is the "forever rules” enacted in statutes or in corporate 

policies. These rules state that anyone who has ever been convicted of a particular subset of 

crimes can never be employed. All of our analyses come out with redemption times well 

under 20 years, and so there should be a heavy burden of proof imposed on any "forever 

rule", many of which are enacted by legislatures in response to a particularly heinous later 

crime.

References:

1) Blumstein, Alfred and Kiminori Nakamura, “Redemption in the Presence of 

Widespread Criminal Background Checks” (2009). Criminology 47(2): 327-359

2) Blumstein, Alfred and Kiminori Nakamura, “Potential for ‘Redemption’ in the 

Presence of Widespread Background Checks” (2009). NIJ Journal June 2009 issue, 

pp. 10-16

3) Blumstein, Alfred and Kiminori Nakamura, “Paying a Price, Long After the Crime” 

(January 10, 2012) OpEd in the New York Times

4) Nakamura, Kiminori, and Alfred Blumstein, "Redemption in an Era of Widespread 

Use of Criminal Background Checks” (2012) PowerPoint presentation.
112 Speakers’ Statements

Redemption in an Era of Widespread Use

of Criminal Background Checks

1

Partially supported by NIJ Grant No. 2007-IJ-CX-0041 and No. 2009-IJ-CX-0008.

Opinions or points of view expressed are those of the authors and do not necessarily

reflect the official position or policies of the U.S. Department of Justice.

Kiminori Nakamura

University of Maryland

Alfred Blumstein

Carnegie Mellon University

December 7, 2012

Glossary

 T1: Redemption Time in relation to general pop’n

 T2: Redemption Time in relation to the NeverArrested plus a risk tolerance (δ)

 A1: Age at first arrest

 C1: Crime type at first arrest

 C2: Crime type of particular concern for a 2nd arrest

2
Criminal Background Checks and the EEOC’s Conviction Records Policy 113

Motivation for the Project

 Technology has made background checking easy – and so very

ubiquitous

 Most large companies (80-90%) now do background checks

 Statutes require background checks for many jobs and job licenses

 Criminal records are also ubiquitous

 Nearly 14 million arrests a year

 92 million criminal records in state repositories

 Recent estimate: 30% of people report a non-traffic arrest by age 23

 More for males

 As a result, many people can’t get a job or otherwise – all

because of a crime that happened long ago

 Need to explore when relief from that prior mark of crime –

“redemption” – should be granted

3

The Problem of “Redemption”

4

 It is well established that recidivism probability declines

with time clean after an arrest or conviction

 If a person with a criminal record remains crime-free

sufficiently long, his risk becomes less than some

appropriate comparison group

 We now have some strong empirical estimates of when

redemption is appropriate

 “redemption time”
114 Speakers’ Statements

Research Approach

 Data: Arrest history records (“rap sheets”) from NY state

criminal-history repository (DCJS)

 All individuals who were arrested for the first time in NY as

adults in 1980 (≈ 88,000)

 Follow-up time > 25 years

 Focus on a subset of arrestees who were convicted

 Age at first arrest: A1 = 19-20 vs. 25-30

 Crime type of the first arrest: C1 = Violent vs. Property vs. Drug

 Recidivism Risk

 Probability that a new arrest occurs at any particular time t for

those who have stayed clean until t

 New arrest here could be for any crime type (C2 = any crime)

 Will later consider concern about specific subsequent crime types 5

Two Benchmark Comparison Criteria

 We compare recidivism risk of those with a

prior criminal record to:

1) Risk of arrest for the general population of the

same age

2) Risk of arrest for those with no prior record

6
Criminal Background Checks and the EEOC’s Conviction Records Policy 115

Comparison to General Population of

the Same Age

 Comparison 1: Rate of arrest among the general

population of a given age

 (Number of arrests/Population) for a given age

 Time to redemption, T1, occurs when recidivism

risk drops below the general population’s risk of

arrest

7

.00

.02

.04

.06

.08

.10

.12

.14

.16

.18

.20

0 1 2 3 4 5 6 7 8 9 10 11 12

Probability of Arrest

Years Since First Arrest

Age 19-20 Violent

Age-crime curve (General

population)

Calculation of T1

8

T1 = 3.8 years

Recidivism risk at T1 = .10

General Population
116 Speakers’ Statements

Comparison to the

Never Arrested

9

 Comparison 2: Risk of arrest for those without a

prior criminal record (the never arrested)

 Simple intersection method used for T1 won’t work if

the never arrested is consistently below recidivism risk

 Estimate time to redemption, T2, when recidivism risk

and the never arrested are “close enough”

 Introduce a risk tolerance (“close enough”)

 How much extra risk an employer is willing to tolerate –

perhaps to get a better employee

.00

.02

.04

.06

.08

.10

.12

.14

.16

.18

.20

0 5 10 15 20

Probability of Arrest

Years since First Arrest

The never arrested

Age 19-20 Violent

δ = .02

10

T2 = 11 years

Recidivism risk at T2 = .03

Calculation of T2

Risk tolerance

Risk tolerance = .02
Criminal Background Checks and the EEOC’s Conviction Records Policy 117

Choice of Benchmark: T1 or T2?

 Factors to be considered:

 Applicant pool

 Many with priors (T1) vs.

 Primarily never-arrested (T2)

 Nature of the job and its risk sensitivity

 < 10% risk (T1) for minor theft from cash register or bar-room

fight

 < 3% risk (T2) for embezzlement risk or assault of vulnerable

populations

11

Concern for Arrests Outside NY

 Those who appear clean in NY might have been

arrested elsewhere

 Obtained from the FBI national criminal records for a

sample of 1980 NY arrestees with no re-arrest in NY

 About 23% of them were found to have arrests elsewhere

 Adjustment of recidivism risk for out-of-state arrests

appropriate

12
118 Speakers’ Statements

Conviction vs. Arrest

 In many hiring situations, employers are prohibited from asking

about an arrest record without a following conviction

 Those convicted are a subset of those merely arrested

 The curves for arrest and for conviction are very similar

13

.00

.02

.04

.06

.08

.10

.12

.14

.16

.18

.20

0 5 10 15 20

Probability of Rearrest

Years Since First Arrest

conviction

arrest

A1 = 19-20

C1 = Violent

Consideration of Incarceration

 Those who appear clean in NY might have been

incarcerated, and that would prevent their rearrest

 Only a small fraction of the 1980 cohort was incarcerated – it

was their first arrest

 No need for adjustment on their recidivism risk

 For those who are incarcerated, time to redemption

should be measured after their release

 That is when they first begin to be at risk of recidivism

 Need information about release time

 Generally not available from rap sheets, but known to applicant

14
Criminal Background Checks and the EEOC’s Conviction Records Policy 119

Concerns about Robustness

 Estimates of redemption times are based on 1980

first-time arrestees in NY

 How reliable are our estimates for use at different

times or in different places?

 We test the robustness of estimates to:

 Different Sampling years (‘85, ‘90 from NY)

 Different States (Florida, Illinois in 1980)

 Results are different in about the first 5-10 years

 But very close after 5-10 years

15

Robustness of Redemption Times

 Our estimates of redemption times are reasonably robust

 Less so for the first 5-10 years, but that period is less

relevant for consideration of redemption

 We find them to be much more similar in later years

 We have rough estimates of redemption times:

 High >= 10 years, 4 < Medium < 10, Low <= 4 years

16

Benchmarks

(probability of re-arrest)

Crime at 1st Arrest: C1 .1 .03

Violent Medium High

Drugs Low High

Property Low Medium
120 Speakers’ Statements

Concern over C2 – The “Next Crime”

 Employers differ in the crime types they care about

 Shop owners or banks care more about property crimes

 Those dealing with vulnerable populations care more

about future incidence of violence

 EEOC requires employers to demonstrate “business

necessity” to justify the use of criminal records

 The future concern based on the prior record should be

job related

17

C2 -Specific Recidivism Risk

(A1 = 19-20, C2 = Violent)

18

Prob rearrest for Violent

Years Since First Arrest

Violent

Property

Drugs

C1:
Criminal Background Checks and the EEOC’s Conviction Records Policy 121

C2-Specific Recidivism Risk

(A1 = 19-20, C2 = Property)

19

Prob. Rearrest for Property

Years Since First Arrest

violent

property

drugs

C1:

C2-Crime-Type-Specific

Redemption Times

 Prior record crime type is indicative of recidivism crime type:

 This is especially true for violence (i.e. prior violence indicates higher

risk of violence)

 Redemption times vary:

 High >= 10 years, 4 < Medium < 10, Low < 4 years

20

Next Crime Crime at A1 Age At First Arrest (A1 )

C2 C1 19-20 (young) 25-30 (older)

Violent

Violent High High

Property Medium Low

Drugs Medium Low

Property

Violent Medium Low

Property Medium Medium

Drugs Medium Low
122 Speakers’ Statements

Conclusions

 Recidivism risk declines with time clean

 Important consideration to employers and government regulators

 Redemption times (T1 and T2) identify key time points

when the criminal record loses its value in predicting risk

 We have strong empirical estimates of redemption times

 Based on a large set of official data

 Tested for robustness over time and across states

 Other researchers have produced similar estimates

 Prior crime type provides an indication of future crime

type, especially for violence

 Our analyses provide a basis for responding to user needs

 Redemption times T1 and T2 can be estimated based on user

specs for A1, C1, C2, risk tolerance, etc.

 Avoids inappropriately denying jobs to people with low risk

 Reconsider the “forever rules”

21

Thank you!

Questions & Suggestions?

Kiminori Nakamura

University of Maryland

Alfred Blumstein

Carnegie Mellon University

22

***
Criminal Background Checks and the EEOC’s Conviction Records Policy 123

Lucia Bone

The Sue Weaver C.A.U.S.E

Before the U.S. Commission on Civil Rights

December 12, 2013

It is a great privilege for me to appear before the United States Commission on Civil Rights 

in honor and in memory of my sister, Sue Weaver, and, for other innocent victims whose 

tragic deaths could well have been prevented had an employer done a criminal background 

check before hiring an individual.

My name is Lucia Bone, and I am the Founder of The Sue Weaver C.A.U.S.E., Consumer 

Awareness of Unsafe Service Employment. C.A.U.S.E. is a nonprofit organization 

proactively keeping you and your family safe by preventing tragedy one service worker at a 

time. 

The Sue Weaver C.A.U.S.E. promotes the importance of proper annual criminal background 

checks on anyone working in our homes or with vulnerable populations. We educate you, the 

consumer, on the importance of knowing whom you hire to work in or near your home and 

your family.

At one time or another, we all need to invite a stranger into our home for maintenance or 

delivery. Did you know that your safety or the safety of your family might be endangered the 

next time you need service work done? Many people believe hiring a company that is 

“bonded and insured” protects them. In truth, it is only an insurance policy and it does not 

mean the employer has done criminal background checks on the workers. Regardless, most 

of us trust the company we hire to send safe workers into our homes. But how do we know if 

that trust is well-placed? My sister, Sue Weaver, thought it was. She was wrong.

My sister hired a reputable Florida department store, Burdine’s, to have her air ducts cleaned. 

No criminal background checks were done on the workers they sent into their clients’ homes.

The work was subcontracted out and two convicted felons were sent into Sue’s home to do 

the service work. A single woman, home alone, two convicted felons. ... Six months later one 

of the workers, Jeffrey Hefling, a twice-convicted sex offender on parole, returned to rape 

and murder Sue. He then set her body and her home on fire in an attempt to destroy the DNA 

evidence. Had Burdine’s done a criminal background check they would have found both men 

were not suitable to be working in their clients’ homes and my sister might still be alive 

today! A criminal background check would have saved Sue’s life.

Since Sue’s death, I have campaigned tirelessly to educate and bring awareness to the 

importance of proper background investigations and the importance of knowing whom you 

hire. We need federal legislation requiring nationwide background checks on individuals 

entering consumers’ homes or working with vulnerable populations. This type of consumer 

safety legislation would better protect unsuspecting individuals like Sue. Not only do 

background checks make good business sense, they save lives. It is absurd that a person with 
124 Speakers’ Statements

multiple convictions for violent sexual assaults would be engaged as a home repairman, yet it 

happens over and over again.

Everyone has the right to work—but not every job is right for everyone. Criminal 

background investigations provide employers an invaluable tool to help them place 

employees in job appropriate positions, better protecting coworkers and clients. Background 

checks prevent tragedies.

Although we still have a long way to go, legislators do understand the importance of criminal 

background checks and the need to mandate appropriate guidelines for certain positions. In 

the last decade, we have witnessed a dramatic upsurge in federal, state and local laws 

mandating background checks in many areas, often to better screen those working with 

children or other vulnerable populations. Unfortunately, we must ask ourselves if the EEOC 

gets it at all!

I believe the EEOC focused its recently updated policy on helping minority ex-offenders 

seek employment, without paying regard to any victims. Everyone deserves a second chance, 

but not at the expense of innocents such as my sister.

On more than one occasion I have written to the EEOC. The following is quoted from a letter 

on July 11, 2011 to Chairwoman Jacqueline Berrien: 

As you conduct your upcoming Commission Meeting on Arrest 

and Conviction Records as a Barrier to Employment, I ask that 

you consider the other side of the coin and remember my 

sister’s case. As the Commission considers revising its 

guidance on the use of arrest and conviction records, consider 

that background checks are beneficial for employers and they 

should be conducted more often, not less! Sue didn’t commit 

the heinous crimes that Hefling committed. Burdine’s should 

have known about his criminal past and not send him into 

consumers’ homes. Is this too much to ask, that employers take 

appropriate steps to ensure the safety of their consumers from 

their employees? Unfortunately, my sister paid the ultimate 

price because a background check wasn’t conducted that would 

have alerted Burdine’s as to who Hefling was. That doesn’t 

mean Hefling couldn’t have been hired, just that armed with 

the knowledge of this criminal history, Burdine’s shouldn’t 

have sent him to my sister’s or anyone’s home.

I am gravely disappointed that no victims were represented at the July 2011 meeting of the 

EEOC. The Commission did not consider the victim’s side, but solely focused their attention 

on the plight of the ex-offenders. Unfortunately, it appears to have erroneously (1) singled 

out background checks as the leading cause of why ex-offenders fail to find a job, ignoring 

other difficulties such as drug or alcohol addictions, lack of education or vocational training 

and lack of family structure and (2) ignored the beneficial side of screening. Rather, than take 
Criminal Background Checks and the EEOC’s Conviction Records Policy 125

steps to encourage employers to rely on criminal background checks, their actions will cause 

employers to conduct less, not more, screening.

It is my opinion that the EEOC has paid little or no attention to such critical issues as:

a) Why employers rely on background checks to ensure a safer workforce.

b) How its new policy would discourage use of background checks.

c) How victims’ advocacy groups felt about any change in policy. I personally attended the 

2011 hearing and was insulted that the EEOC showed no interested in hearing from any 

victims. It was apparent that the hearing was only a formality; their focus was on 

protecting ex-offenders.

In addition, they made a serious error by failing to allow the public to view and comment on 

the Guidance before it was issued. The EEOC needs to suspend implementation of its 

Guidance and hold the type of transparent, inclusive proceeding that it should have 

conducted in the first place. This time they need to listen to victims and their families and 

victims’ rights organizations and those representing the vulnerable populations and not 

ignore their comments and letters, as was done in the past. All views need to be heard and 

considered before a new policy goes into effect. When weighing the risk and benefits of the 

proposed policy guidance, the Guidance must balance the safety of the public and innocent 

consumers against the employment concerns of ex-offenders!

While sadly it is too late for my sister, it’s not too late for all the others who might become 

victims because of the EEOC’s misguided Guidance. Without background checks used to 

qualify individuals that work or care for our families or do service work in our home, we are 

knowingly risking the safety of our loved ones and ourselves.

Sue was no different than your sister, your aunt, your daughter, your neighbor or your best 

friend. She was my best friend, my inspiration, my ideal and my big sister.

Stranger danger isn’t just for little kids. At one time or another we all have to invite a 

stranger into our home for a delivery or service work. We trust the companies we hire to not 

send convicted felons into our homes.

Common sense says you wouldn’t hire a drug dealer to work in a pharmacy, a thief to work 

in a bank or a sex-offender to work in our home or with the vulnerable populations. Not only 

is common sense not law, but under these guidelines the EEOC is actually forcing employers 

to make decisions on job applicants without the proper use of the resources that would allow 

an applicant to be placed in an appropriate positions for their skill and character.

When the EEOC weighed the risks and benefits of the proposed policy Guidance, it should 

have balanced the safety of innocent consumers and ex-offenders. It did not; its Guidance is 

unacceptable and it should be revoked.

Thank you.

***
126 Speakers’ Statements

____________________________________________________________________________________

Garen E. Dodge

STATEMENT AND TESTIMONY

in support of

THE USE OF CRIMINAL-BACKGROUND

CHECKS IN EMPLOYMENT

to the

U. S. COMMISSION ON CIVIL RIGHTS

on behalf of

THE COUNCIL FOR EMPLOYMENT LAW EQUITY

And

JACKSON LEWIS LLP

by

Garen E. Dodge, Jackson Lewis Partner and CELE General Counsel

December 7, 2012

____________________________________________________________________________________

Council for Employment Law Equity · 10701 Parkridge Blvd., Suite 300 · Reston, Virginia 20191 ·

703/391-7224 · Fax 703/391-7223
Criminal Background Checks and the EEOC’s Conviction Records Policy 127

I. Statement of Interest

On behalf of the Council for Employment Law Equity (“CELE”) and Jackson Lewis

LLP, I appreciate this opportunity to comment to the U.S. Commission on Civil Rights (the

“Commission”) regarding its Concept Paper: Assessing the Impact of Criminal Background

Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy

on the Employment of Black and Hispanic Workers. Besides my position with the CELE, I

am also a Partner at the national employment law firm of Jackson Lewis.

The Council for Employment Law Equity, on behalf of the employer community as

end users of criminal-background checks, is in strong support of the appropriate use of

criminal-background checks in employment. Such record-checks before the commencement

of employment are highly effective and vital tools to help prevent criminal recidivism in the

most harmful contexts, protect at-risk populations, and assist employers in making fully

informed hiring decisions and in protecting their employees, their clients and customers, their

assets, and the public at-large.

It is my firm and unequivocal belief that the use of criminal-background checks in

employment is in the decisive interests of employers, employees, and the American public

overall, helps protect vulnerable populations within our society, and is an effective crime

deterrent.

Moreover, empirical evidence strongly supports the conclusion that record-checks

ultimately are in the strong interests of ex-offenders themselves in terms of positively

influencing their opportunities for re-employment and re-integration into society. The plain

truth is that employers who do criminal-background checks are more likely to hire exoffenders than employers who do not (and who, therefore, often resort to assumptions which

may lead to statistical discrimination).

Convicted felons are not a protected class in America. “Discrimination” against

convicted felons – if race-neutral, “color-blind,” and void of any consideration based on any

individual’s status as a member of a protected class – is not discrimination. Employers have a

right – indeed, an obligation – to protect their companies, their workers, their customers, the

public at-large, and their assets. They have a legitimate interest – if not a responsibility – to

protect the safety, health, and well-being of their workers and those who use their goods and

services, and to refrain from any hiring practice which would jeopardize these interests.

Some studies challenge the basic assumption that discrimination against AfricanAmericans (and other minorities) explains the overrepresentation of minority groups in

prison. Contrary to this assumption, these studies conclude that, for example, proportionately

more African-Americans are in prison because proportionately more African-Americans

commit crimes.1

1

 See, e.g., Patrick A. Langan, Racism on Trial: New Evidence to Explain the Racial Composition of Prisons in

the United States, 76 J Crim.& Criminology, 666 (1985).
128 Speakers’ Statements

Also in refutation of this “basic assumption” (of discrimination) is the argument that 

only some minorities are “overrepresented” in prison – African-Americans and some

Hispanic subgroups. By contrast, Asian-Americans and minorities from such national origins 

as El Salvador and the Dominican Republic are “underrepresented” in prison vis-à-vis 

whites. If the criminal-justice system were tilted against Hispanics, why only some

Hispanics? If it is tilted against minorities, why only some minorities? If it is tilted against 

African-American males, why not against African-American females? The conclusion of 

Langan2 – and others – is that those in prison, by-and-large, deserve to be in prison – not 

because they are (or are not) members of a minority group – but because they are convicted 

felons. Criminals are criminals – regardless of race. Moreover, if employers have a 

compelling business justification for screening out convicted felons, no further inquiry into 

motive or intent is necessary and no justifiable cause of action exists.

Besides supporting employers’ rights to perform criminal-background checks as a 

necessary and appropriate component of their hiring process, the CELE also opposes any 

initiative (by the EEOC or other government entity) which would: (1) unduly restrict the 

employer option of conducting criminal-backgrounds checks; (2) make broad assumptions to 

facilitate disparate-impact claims against employers that neglect individualized applicantpool qualification and interest factors for a specific employer; and/or (3) retreat from the 

current “job-related” and “business necessity” standards and widely endorsed by employers 

and the courts.

The Council for Employment Law Equity is a non-profit coalition of major employers 

committed to the highest standards of fair, effective, and appropriate employment practices.

The CELE advocates such employment practices: (1) to the employer community; (2) before 

the judicial, legislative, and executive branches of government; and (3) to the public atlarge.3

The CELE regularly attempts to positively and constructively influence the 

consideration of national policy issues of importance to the employer community. The use of 

criminal-background checks in employment is one such issue. 

Jackson Lewis is a national law firm of more than 730 lawyers in 49 offices, all of 

whom are dedicated exclusively to the representation of management on labor and 

 2 See id.

3 Among other activities, the Council for Employment Law Equity has filed amicus curiae briefs on numerous 

occasions to the U.S. Supreme Court, and to other federal and state courts and the National Labor Relations 

Board; has filed comments during rule-making to the U.S. Department of Labor, the U.S. Department of Health 

and Human Services, the Office of Management and Budget, and the Government Services Administration; and 

has been active on policy-making issues before the American Bar Association’s House of Delegates – including

on issues regarding criminal-background checks.
Criminal Background Checks and the EEOC’s Conviction Records Policy 129

employment issues.4

Clearly, the CELE in particular, and the employer community in general, has a very

strong interest in any initiative which would embrace or discourage the use of criminalbackground-check policies and programs in employment.

I respectfully urge, on behalf of the CELE and the employer community at-large, the 

endorsement of: (1) the use of criminal-background checks in employment for a much

broader range of employment situations; (2) greater private-sector employer access to such 

criminal-conviction records; and (3) ultimately, the protection and promotion of the right of 

all employers to have access to all criminal-conviction records without a date limitation, 

provided the conviction records have not been expunged so that employers can make 

qualified hiring and assumption-of-risk decisions.

The protection and promotion of the use of criminal-background checks in 

employment endorses and underscores the principle that employers should have more – not 

less – information upon which to make fully informed hiring decisions. 

II. Negligent-Hiring Lawsuits Are Rising and Forcing Employers to Defend Their 

Hiring Practices

There has been an explosive growth in negligent-hiring lawsuits – and employer 

liabilities – in the United States, and the upward trend is continuing.

Employers are being forced to defend their hiring practices and decisions whenever a 

workplace violence or other work-related crime with victims takes place. The plaintiffs’ law 

is aggressive in this regard, and understandably so given their success rate in negligent-hiring 

and negligent-retention lawsuits, as detailed below.

The standard applied to employers is: Did you do everything a reasonable and 

responsible employer would do to prevent this (the crime) from happening?

“Everything” a reasonable and responsible employer would do includes criminalbackground checks – according to a growing number of courts, juries, and arbitrators... and 

the EEOC itself (in the EEOC v. ABM Industries case, see discussion below). 

Thus, there is a very compelling public policy in favor of the increased use of 

criminal-background checks, a policy increasingly articulated by court-after-court in 

jurisdiction-after-jurisdiction and with sizeable jury award or settlement amount after 

sizeable jury award or settlement amount.

 4 No law firm has had as extensive or prominent a labor practice as has Jackson Lewis over the past 50 years. In 

addition, Jackson Lewis has the highest concentration of employment lawyers in such major markets as the 

New York, Washington, and Los Angeles metropolitan areas.
130 Speakers’ Statements

Unfortunately, virtually all of us know what the term “going postal” means. 

Workplace violence is a reality in America today – a sad, disturbing, increasing workplace 

reality.

In fact, 16 percent of the “criminal-justice population” has “serious mental-health 

problems,” as cited by Amy Solomon, U.S. Department of Justice Senior Advisor in her 

testimony to the EEOC on July 26, 2011.5

Moreover, this growing – and tragic – phenomena of workplace violence is 

exacerbated by the much greater influx of released convicted felons into the workplace. 

(More than 650,000 convicted felons were released from prison in the United States last year 

alone.)

Given the high6 – and unacceptable – criminal-recidivism rates, coupled with the 

explosion in negligent-hiring and negligent-retention lawsuits: (1) Do employers have any 

choice but to do criminal-background checks on job applicants?; (2) Does American society

have any choice but to endorse and encourage this practice?; and (3) How unreasonable, 

inappropriate, and contrary to national public policy and legal precedent would it be to 

impede, restrict, or disallow criminal-background checks in employment, or – in effect –

penalize employers for adopting such necessary and appropriate policies and practices?

The U.S. Supreme Court ruled last year in NASA v. Nelson7 that it is reasonable and 

appropriate for the federal government to perform background checks on federal contractor 

employees. The Court stated that: “Like any employer, the Government is entitled to have its 

projects staffed by reliable, law-abiding persons who will ‘efficiently and effectively’ 

discharge their duties.”8 It likewise has an interest in “separating strong candidates from 

weak ones.”9 Clearly, the Court considers criminal-background checks necessary and 

appropriate.

To the extent that it would inhibit or impede employers’ use of criminal-background 

checks as a necessary and appropriate employment practice, the EEOC’s changes in its 

Guidance and enforcement focus likely increase an employer’s exposure in negligent-hiring 

cases, and contradict the principles embraced by the NASA v. Nelson decision.

In addition, courts and juries have consistently found employers liable for injuries or 

damages caused by an employee where the employee had a criminal history that should have 

 5 Paula Ditton, Mental Health and Treatment of Inmates and Probationers, Special Report NCJ 174463 

(Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, 1999).

6 As much as 80 percent, see below.

7 131 S. Ct 746 (2011).

8 Id. at 759-760

9 Id. at 761.
Criminal Background Checks and the EEOC’s Conviction Records Policy 131

alerted the employer of a potential issue. For example in Heller v. Patwil Homes, 713 A.2d 

105, 108 (Pa. Super. Ct. 1998), a court found negligent hiring where, had the employer 

performed a background check, it would have learned that Strouse had engaged in investment 

fraud resulting in his being “disciplined” by the Pennsylvania Securities Commission. In Doe 

v. Liberatore, 478 F. Supp. 2d 742, 760 (M.D.Pa 2007), the court found that “the Diocese, 

Sacred Heart and Bishop Timlin may be liable if they knew or should have known that [the 

employee] had a propensity for committing sexual abuse and his employment as Pastor at 

Sacred Heart might create a situation where his propensity would harm a third person, such 

as Plaintiff.” In Sabo v. Lifequest, Inc., 1996 U.S.Dist. LEXIS 14971 (E.D.Pa 1996), the 

court stated that, “Among the essential elements of a negligent-retention claim is proof that a 

more thorough investigation by the employer would have revealed that the employee had a 

history of harassing conduct.”

States wisely recognize a claim against an employer for negligent hiring. 

Pennsylvania, for example, recognizes a claim where: (1) the employer knew or should have 

known of the employee’s incompetence or propensity for harm; and (2) the harm to third 

persons was foreseeable. See Smith v. Bethany, 48 Pa. D. & C.3d 359 (Pa. Comm. Pl. 1988); 

Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968); Coath v. Jones, 277 Pa. Super. 

479, 483 (Pa. Super. Ct. 1980) (holding that the employer “could be found negligent if [the 

employee] was known to have the inclination to assault women or if the defendant should 

have known that.” “It has long been the law in this Commonwealth that an employer may be 

liable in negligence if it knew or should have know that an employee was dangerous, careless 

or incompetent and such employment might create a situation where the employee's conduct 

would harm a third person.” Brezenski v. World Truck Transfer, Inc. 2000 Pa. Super. 175, 

*P11 (Pa. Super. Ct. 2000).

This is consistent with examples around the country. Today, nationwide, the 

plaintiffs’ bar is increasingly pressing claims against employers, and the courts are 

increasingly holding employers legally and financially responsible for illegal or violent 

actions by employees who were not subjected to preemployment screening – such as 

criminal-background checks. This is most often, and most aggressively, litigated in regard to 

employers’ hiring of convicted felons whom – claim the plaintiffs’ attorneys – the employers 

knew, should have known, or should have reasonably anticipated would commit crimes 

again.10

Employers’ liability in such legal actions has been substantial – often resulting in 

multi-million-dollar verdicts or settlements. Negligent-hiring and negligent-retention cases 

are on the rise.11 Courts in almost every jurisdiction now recognize the doctrines of negligent 

hiring and retention.12

 10 Or cause industrial or vehicular accidents – e.g., caused by their drug abuse or reckless/impaired driving for 

which they had a prior record which easily could have been discovered by a criminal-background check.

If an employee causes harm to another employee or to a customer, or 

11 Infra, see note 12. 

12 Daily Labor Report. No. 179, Page A-7, see id. 
132 Speakers’ Statements

to a member of the public at-large, and the employer knew or should have known that the

individual causing the harm was high-risk, the courts have found the companies liable.

Employers in negligent-hiring cases lose more than 70 percent of such lawsuits, and the

average jury plaintiff award is more than $1.6 million.

13

The appropriateness and necessity of criminal-background checks comes further into

focus given that, according to the U.S. Department of Commerce, 30 percent of business

failures are due to poor hiring practices.14 Annual losses generated by poor hires,

absenteeism, drug abuse, and employee theft amount to $75 billion per year.15

According to the Association of Certified Fraud Examiners, $652 billion per year is

lost to internal fraud. Small businesses are the most vulnerable, accounting for a whopping

80 percent of all internal fraud cases. Employee-committed acts are the most common and

most expensive type of fraud, accounting for more than half of all reported cases16

Simply trusting job applicants to be truthful on their job applications is neither

rational nor responsible. According to a recent study by the American Psychological

Association, 67 percent of job applicants’ résumés in the United States contain material

misrepresentations.17

Approximately 66 percent of negligent-hiring trials overall result in awards averaging

$600,000 in damages.18 The Workplace Violence Research Institute reports that the average

jury award for civil suits on behalf of the injured is $3 million.19

The following are examples of lawsuits with adverse outcomes against employers for

negligent-hiring claims:

(1) In California, a store customer was injured in an

altercation with a Kmart security guard after trying to

return an item. The customer, while being restrained,

13 Public Personnel Management, USA Today, Nov. 21, 2003.

14 U.S. Department of Commerce: http://jobcircle.com/career/articles/x/njtc/3026.xml.

15 Corporate Combat Inc., at http://www.corporatecombat.com/statistics.html.

16 Source sbnonline.com (last viewed Aug. 8, 2011)

17 Sixty-seven percent of job applicants’ résumés contain misrepresentations: Info Cubic, Employment

Screening FAQ, at http://www.infocubic.net/faq.htm.

18 Alliance Network, Chicago & Illinois Background Checking, at http://www.alliancehrnetwork.com/

employers/background_checking.asp.

19 Workplace Violence: An Employer’s Guide, Steve Kaufer, CPP and Jurg W. Mattmann, CPB, at

http://www.workviolence.com/articles/employers_guide.htm.
Criminal Background Checks and the EEOC’s Conviction Records Policy 133

was injured by the security guard. The customer was 

awarded $3.8 million in damages in a lawsuit claiming 

negligent hiring against the store;20

(2) A furniture company in Florida was found liable for 

$2.5 million for negligent hiring and retention of a 

deliveryman who savagely attacked a female customer 

in her home;21

(3) A Pennsylvania jury awarded $1.5 million for the 

negligent hiring of a babysitter who abused a child;22

(4) A jury awarded $2.76 million in West Virginia to the 

parents of a deceased child when a doctor negligently 

failed to diagnose and treat the mother, which resulted 

in the death of the newborn son. The hospital 

negligently hired the doctor without investigating an 

agreed order between the doctor and the medical 

licensing board that put his medical license on 

probationary status for writing a large volume of 

prescriptions for illegitimate non-medical purposes not 

in the course of professional practice;

23

(5) In McLean v. Kirby Co.,

24

 20 Heiner v. Kmart Corp., 84 Cal. App. 4th 335 (Cal. Ct. App. 2000).

Urie, a Kirby distributor, 

hired Molachek as a dealer. Molachek had a history of 

violent crimes and was charged with sexual assault at 

the time he was hired. Within a month of hire, 

Molachek raped Linda McLean. Relying on the 

"peculiar risk" doctrine of Section 413 of the 

Restatement (2d) of Torts, the Supreme Court of North 

Dakota upheld the judgment against Kirby. As a result, 

Kirby has put warnings in its training manuals of the 

need to do a "thorough criminal-background check" on 

potential dealer candidates, had discourse with some 

distributors about the need to do reference checks, and 

instructed that if "red flags" come up in the process, the 

distributors should do further background checks;

21 Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. Dist. Ct. App. 1991).

22 Glomb v. Glomb, 366 Pa. Super. 206, 530 A.2d 1362 (1987).

23 Andrews v. Reynolds Memorial Hosp., 201 W. Va. 624 (W. Va. 1997).

24 McLean v. Kirby, 490 N.W.2d 229 (N.D. 1992).
134 Speakers’ Statements

(6) On December 31, 1998, the Texas Supreme Court held

a company was liable for negligent hiring associated

with the actions of an independent contractor.25 In this

case Kirby Vacuum’s independent contractor door-todoor salesman raped a woman;

(7) In February 2009, in a negligent hiring case, a Texas

jury ordered a cab company to pay $300,000 to a

woman taken on a terrifying ride by one of its drivers.26

The jury found the cab company, Greater Houston

Transportation, should have done a criminalbackground check before hiring Ricardo Steel as an

independent contractor. The verdict against Greater

Houston was delivered even though the driver, Steel,

had a permit from the City of Houston, which requires

background checks;

(8) In a verdict called "a loud wake-up call" to service

firms sending employees into people's homes, a

California jury in 2000 determined that a company must

pay $9.38 million in damages to the surviving spouse of

a woman killed by a carpet cleaner. 27

25 Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex.1998).

 The Alameda

County Superior Court jury found America's Best

Carpet Care negligent in not obtaining a background

check on Jerrol Glenn Woods, 52, of Vallejo, who is

serving life in prison without parole following the May

5, 1998, stabbing death of Kerry Spooner-Dean, 30.

The case shows that employers can be held responsible

for the actions of their employees, and the importance

of conducting criminal-background checks. Surviving

spouse Daniel Dean says one of two goals in filing the

wrongful death suit was to send a message to the

industry that it must screen employees. Coupon

advertising brought the victim to America's Best which

– court documents show – serves as a dispatching agent

to cleaners, who operate their own companies. The

Oakland Tribune reported on a similar case: The

survivors of Terenea Fermenick won a $1-million-plus

26Jonathan M. LeBlanc, Jury Awards 300K in Negligent Hiring Case,

http://www.businessblogdallas.com/negligent-hiring/, Feb. 27, 2009. (last visited Aug. 2, 2011)

27 Daniel Dean vs. Oppenheim Davidson Enter., Inc., No. 809231, Superior Court of State of California,

Judicial District, County of Alameda, Nov. 16, 2000.
Criminal Background Checks and the EEOC’s Conviction Records Policy 135

settlement from the company that employed Giles 

Albert Nadey Jr. Sent to clean carpets in a rectory in 

1996, Nadey, a full-time employee of a carpet cleaning 

company, raped and killed a minister's wife;

(9) In 2010, Amy Bishop, a biology professor, walked into 

a meeting and shot and killed three of her colleagues, as 

well as wounding three others. A background check at 

the time of her hiring would have revealed that in 2002, 

eight years earlier, she pled guilty to and had a 

misdemeanor conviction for assault and disorderly 

conduct for punching a woman in the head at an IHOP. 

Ms. Bishop did so because the woman took the last 

booster seat;

(10) Byran Uyesugi began working as a technician for 

Xerox in Honolulu, Hawaii in 1984. After being 

transferred to another team he began complaining of 

harassment and alleging that his co-workers were 

tampering with equipment. He also began making death 

threats against co-workers. In 1993, he was arrested for 

criminal damage after he kicked in an elevator door. At 

that time, he was made to undergo a psychiatric 

evaluation and to attend anger management courses. A 

doctor cleared him to return to work. On November 2, 

1999, fearing he was about to be fired, he murdered 

seven of his co-workers and attempted to murder 

another. The murders occurred six years after he first 

displayed violent tendencies;

28

(11) Lisa Keibler, a mother of three young children, arrived 

home to find a meter reader, John Cramer, from 

Bermex, Inc. nearby. When she left her vehicle, Cramer 

approached Keibler and asked her to identify the 

location of her gas meter. Keibler did so and progressed 

into her home to take care of chores and rest. She was 

awakened by a noise and turned to find Cramer in her 

bedroom. Keibler demanded that Cramer leave, at 

which point Cramer began to attack her. Cramer 

grabbed her by the hands, arms, and neck, cutting off 

her breath and blocking her mouth and nose. He 

proceeded to beat and rape Keibler several times, 

forcing her to perform involuntary deviate sexual 

 28 State of Hawaii v. Byran K. Uyesugi, Case No. 1PC99-0-002203.
136 Speakers’ Statements

intercourse, among other vile acts. Cramer finally ran 

off when Keibler’s five-year-old son came to the door 

of the bedroom frightened. A background check 

performed by Bermex on Cramer the day after his 

arrest revealed several convictions for arson, risking a 

catastrophe, criminal mischief, burglary, theft, and 

receiving stolen property. Remarkably, Cramer also had 

convictions for involuntary deviate sexual intercourse, 

indecent assault, and various other crimes. In fact, on 

his hire date, Cramer was on parole and had within the 

preceding 30 days been arrested again for felony 

charges, including possession of marijuana and 

maintaining of paraphernalia related thereto;29

(12) Paul and June Heller approached Patwil Homes, a 

construction company, to discuss specifics of a new 

home to be built. After working through the details, 

Patwil agreed to build a base model home for the 

Hellers. Shortly before the Hellers signed the contract, 

Patwil hired a sales manager, Bill Strouse. Strouse 

developed a relationship with the Hellers and 

eventually proposed to them that they take part in an 

investment opportunity to upgrade their home from a 

base model. The Hellers succumbed to Strouse’s 

proposal and invested nearly $50,000. Strouse later 

delayed the closing on the home and eventually 

disappeared with most of the Hellers’ money. Strouse 

was hired by Patwil Homes without a background 

check. He had previously engaged in investment fraud 

resulting in his being disciplined by the Pennsylvania 

Securities Commission. The court found Patwil Homes 

liable for the damages suffered by the Hellers;

30 and 

(13) Paul Dennis Reid served seven years of a 20-year 

conviction relating to aggravated armed robbery of a 

steakhouse in Houston, Texas. When he was paroled he 

moved to Nashville, Tennessee. In early 1997, he was 

fired from his job at a Shoney’s Restaurant where he 

worked as a dishwasher for throwing a dish at a coworker after losing his temper. On June 25, 1997, Reid 

went to the home of his former boss, brandishing a 

weapon and threatening to kill the manager if he did not 

 29 Keibler v. Cramer, 36 Pa. D.&C.4th 193 (Pa. D.&C. May 26, 1998).

30 Heller v. Patwil Homes, 713 A.2d 105, 108 (Pa. Super. Ct. 1998).
Criminal Background Checks and the EEOC’s Conviction Records Policy 137

hire him back. However, before that occurred and the 

day after he was fired from Shoney’s, February 16, 

1997, he robbed and murdered two employees of a 

Captain D’s Restaurant, a company owned by 

Shoney’s. Subsequently, in March and April of that 

same year he robbed and murdered three McDonald’s 

employees and injured a fourth and he robbed, 

kidnapped, and murdered two Baskin Robbins 

employees. He is on death Row in Tennessee for the 

seven murders.31

There are many other examples:

(14) A security company was found liable for negligently 

hiring guards who beat a spectator;

32

(15) Corporate liability for negligently hiring a security 

guard with a prior criminal record;

33

(16) A hotel settled a lawsuit over a guest's rape by a 

housekeeper when negligence in the employee 

background check was alleged;

34

(17) A failure to investigate a housing inspector's past 

criminal record resulted in a $200,000 settlement for 

rape;

35

(18) A lawsuit was settled for $1.4 million in the killing of a 

store customer by a security guard after the lawsuit 

alleged that guard was negligently hired and entrusted 

with weapons;

36

 

31 State of Tennessee v. Paul D. Reid, Case Nos. 97-1834 & 97-1836, Circuit Court for Davidson Cnty,Tenn.

32 Gonzales v. Sw. Sec. & Prot., 665 P.2d 810 (N.M. App. 1983).

33 Kanne v. Burns Int’l Sec. Servs., Inc., Los Angeles County Superior Court, No. SWC 61883, 5/18/84; 28 

ATLA L. Rep. 78.

34 Wahlers v. Hotel Nevada, Nev., Clark County Superior Court, No. A 241758 (Oct. 24, 1986).

35 Cramer v. Hous. Opportunities Comm’n of Montgomery Cnty., Md., Montgomery County Circuit Court, No. 

46581, Mar. 30, 1987, 30 ATLA L. Rep. 318 (Sept. 1987).

36 Montauban v. Haitian Transfer Express Co., N.Y., Kings County Supreme Court, No. 29/84, April 15, 1988, 

reported in 31 ATLA L. Rep. 319 (Sept. 1988).
138 Speakers’ Statements

(19) An employee with a criminal record forced a child to 

perform oral sex and $1.75 million was awarded for 

negligent hiring and retention;

37

(20) A 20-year-old tenant was raped in a co-op apartment by 

a building management employee and the subsequent 

negligent-hiring claim was settled for $500,000;

38

(21) A nursing home was found liable for $235,000 for 

negligent hiring of an unlicensed nurse with 56 prior 

criminal convictions who assaulted an 80-year-old 

visitor;

39

(22) A hospital settled a lawsuit for negligent hiring, 

retention, and supervision of an employee who raped a 

mentally retarded patient.40 The employer was not 

relieved of the duty to exercise care in the selection of 

employees when they hired a juvenile criminal offender 

as part of a rehabilitation program;41

(23) A car-rental company in Pennsylvania settled for $2.5 

million a lawsuit seeking to hold it liable for negligent 

hiring and entrustment of an intoxicated security guard.

The guard had an on-duty traffic accident in a company 

car in which he and another motorist were killed;

42

(24) A bar was liable for an off-duty doorman's alleged

assault on a patron in a parking lot. The doorman had 

been involved in prior fights on the premises as a 

 37 Doe v. MCLO Enters, Ohio, Cuyahoga County Court of Common Pleas, No. 74028, Sept. 28, 1989, reported 

in 33 ATLA L. Rep. 27 (Feb, 1990).

38 Welch v. Niles Mgmt., Mass., Suffolk County Superior Court, No. 77747, Oct. 2, 1989, reported in 33 ATLA 

L. Rep. 115 (April 1990).

39 Deerings West Nursing Ctr. v. Scott, 787 S.W.2d 494 (Tex. App. 1990).

40 Corker v. Appalachian Reg’l Healthcare, Inc., U.S. Dist. Ct., S.D. W. Va., No. 5:88- 1097, Dec. 12, 1989, 

reported in 33 ATLA L. Rep. 264 (Aug. 1990).

41 Nigg v. Patterson, 276 Cal. Rptr. 587 (Cal. App. 1990).

42 Butler v. Hertz Corp., Pa., Philadelphia County Court of Common Pleas, Apr. Term, 1990, No. 1691, Feb. 11, 

1991, reported in 34 ATLA L. Rep. 247 (Sept. 1991).
Criminal Background Checks and the EEOC’s Conviction Records Policy 139

patron, so the bar should have known that hiring him as 

a doorman made further altercations foreseeable;

43

(25) A grocery store was held liable for negligent retention 

of a store manager who allegedly attacked a four-yearold boy in a store parking lot after another boy who 

came in the same car urinated on an outside store wall. 

The manager had previously been promoted after he 

engaged in an unprovoked attack on another employee. 

The knowledge of other employees of the manager's 

attack on his own son could be imputed to the 

company;

44

(26) A company which provided ushers for rock concerts

was sued for negligent hiring for failing to investigate 

the background of a job applicant who attempted a rape 

of minor girl at a concert;

45

(27) A carpet-cleaning business was held liable for $1 

million for the negligent hiring of an employee who 

allegedly murdered two students while cleaning a 

carpet in their home. The employee had prior arrests for 

drugs, carrying a concealed weapon, and resisting arrest 

with violence;

46

(28) A store was held liable for negligent and wanton 

training and supervision of an employee who allegedly 

forced a customer he detained to perform oral sex on 

him or face criminal prosecution as a suspected 

shoplifter;47

(29) An armored-car company settled a negligent hiring, 

training, and supervision lawsuit for $12 million when 

it was alleged that it did not adequately investigate an 

 43 Medina v. Graham's Cowboys, Inc., 827 P.2d 859 (N.M. App. 1992).

44 Bryant v. Livigni, 619 N.E.2d 550 (Ill. App. 1993).

45 Carlsen v. Wackenhut Corp., 868 P.2d 882 (Wash. App. 1994).

46 McKishnie v. Rainbow Int’l Carpet Dyeing & Cleaning Co., Fla. Cir. Ct., No. 91-3617 CA Div. "J", March 

11, 1994, reported in Vol. 9 Individual Employment Rights News No. 7, p. 1 (April 12, 1994).

47 Big B, Inc. v. Cottingham, 634 So. 2d 999 (Ala. 1993).
140 Speakers’ Statements

employee's past work record or provide adequate 

driving training;

48

(30) A lawsuit was settled for $5 million when the family of 

a deceased female tenant sued an apartment complex 

owner and management. The lawsuit claimed that the 

tenant was killed by the brother of the complex's 

assistant manager and that it was negligent hiring to 

hire an assistant manager without a criminalbackground check;

49

(31) A store was sued for negligent supervising and 

retention of a security guard who allegedly had sexual 

intercourse with a 15-year-old female shoplifting 

suspect in exchange for letting her go;

50

(32) A jury awarded $680,000 against a nursing home for a 

sexual assault on a 92-year-old female resident by an 

employee hired without any screening. An Illinois 

statute provided for tripling of the award to 

$2,040,000;

51

(33) A store customer detained by a security guard at a 

department store as a suspected shoplifter and injured 

while being restrained was awarded $10 million in 

damages in a lawsuit against the store claiming 

negligent hiring;

52

(34) Evidence concerning whether a bouncer had been 

discharged from the military for striking an officer, and 

evidence of other fights that he had been in were 

relevant to claim of negligent hiring, retention, 

 48 Quinones v. Roe, Cal., Los Angeles County Super. Ct., No. BC 076751, Mar. 23, 1994, 37 ATLA L. Rep. 

No. 10, p. 376 (Dec. 1994).

49 Liebman v. Hall Fin. Group, Inc., Tex., Dallas County 116th Jud. Dist. Ct., No. 93-07042-F, July 27, 1994, 

reported in 38 ATLA L. Rep. 149 (May 1995).

50 Hoke v. May Dep’t Stores Co., 133 Or. App. 410, 891 P.2d 686 (1995).

51 Brown v. Springwood & Assocs., No. LKA 94-657 (Circuit Court, Kane Co. Ill.), reported in Chicago Daily 

Law Bulletin p. 3 (Jan. 26, 1996).

52 Porter v. Proffitt's, Inc., Tenn., Bradley County Cir. Ct., No. V-94-676, Sept. 19, 1996, reported in 40 ATLA 

L. Rptr. No. 2, p. 72 (March 1997).
Criminal Background Checks and the EEOC’s Conviction Records Policy 141

supervision, and training against a nightclub at which

he hit a patron;53

(35) Numerous other examples are detailed in various

articles.54, 55, 56

The increased threat of a disparate-impact lawsuit would undoubtedly lead employers

to hire more individuals with red-flag criminal histories which would lead to more negligenthiring claims against employers. To the extent employers are “punished” for doing criminalrecord checks, they would be less likely to do so. The net result: less safe workplaces and

more victims of violence, particularly at-risk populations such as children, the elderly, and

the infirm.

Conversely, as the number of negligent-hiring claims, verdicts, and settlements grow

– as does the size of the verdicts and settlements – employers recognize the necessity of

minimizing their potential legal liability – but more importantly – of protecting their

employees and their assets, and the public at-large.

One additional point about settlements is extremely noteworthy and must not be

overlooked. For every case that results in a verdict of negligent hiring, there are many, many

more where settlements occur. In these cases, defense attorneys for the employers commonly

realize the risk of liability and frequently advise their clients to quietly settle the cases rather

than being exposed to the potential of the adverse public-relations nightmares, huge costs,

and tenuous outcomes of jury verdicts.

First and foremost, this is a people issue. The examples above are incidents that never

should have happened. Employers have an obligation – and recognize that obligation – not to

aid and abet criminal behavior. The explosive growth in negligent-hiring and negligentretention lawsuits simply underscores employers’ commitment in this regard and the

necessity of criminal-background checks in employment.

53 Hall v. SSF, Inc., 930 P.2d 94 (Nev. 1996).

54 Peter Page, Boss liable for rape by driver, Nat’l L.J,. A10, Oct. 1, 2001

55 Margaret Cronin Fisk, Estate wins $46 million for killing, Nat’l L.J., Mar. 1, 2002

56 Check, Please, Wall Street Journal, Mar. 11, 2002, available at www.firstcontacthr.com/pdf/checkplease.pdf

(last visited 8/3/2011)
142 Speakers’ Statements

III. Summary of the CELE’s Position on Criminal-Background Checks in 

Employment 

The seminal question is: Should employers have access to federal and state criminalconviction records and be able to use those records as a factor in their consideration of job 

applicants?

The seminal answer is: Absolutely. Such access and consideration is not only 

appropriate, in many contexts it is absolutely necessary given the high rates of criminal 

recidivism and the legitimate employer, employee, and public expectations regarding safety 

and security.

Some advocates of ex-offenders’ rights want to restrict the use of criminalbackground checks of job applicants by employers, no matter how dire the possible 

consequences.57

One state – Connecticut58 – already has enacted and repealed a restrictive law in this 

regard. Proposals are pending in several other states.59

In Connecticut, an amendment was added to a non-germane bill during a July 2007 

late-night session that, due to the administrative burdens it would impose, would effectively 

deny criminal-background checks as an option to employers. The amendment’s effective date 

was delayed and ultimately repealed after it was widely reported that a Connecticut school 

district hired a convicted pedophile as a teacher/coach. The people of Connecticut did not 

want what their government was preparing to give them. The uproar scuttled the proposed 

limits on the background checks.

Some criminal-rights’ advocates are pushing for policy guidance, rules, and/or 

legislation that would only allow for criminal-background checks only under very limited 

exceptions – such as for job applicants for law enforcement positions, or for convictions for 

particularly egregious crimes, or for a limited period after the conviction (provided the 

individual has not subsequently been convicted of the same or a related crime during that 

period).

These exceptions are not particularly meaningful. For example, an individual may 

have been arrested for an egregious crime (e.g., terrorism-related activities), but pleaded out 

to a lesser crime (e.g., conspiracy to commit a crime or a firearms-possession charge)... or

the individual may have been acquitted because of a technicality or a tainted confession... or

 57 For example, there was some effort by the leaders of the American Bar Association’s (“ABA”) Commission 

on Effective Criminal Sanctions, to promote sealing of criminal-conviction records as a proposed resolution 

before the ABA’s House of Delegates in 2007. This effort was rejected.

58 2007 Conn. Acts 07-243 (originally Connecticut SB 1700).

59 Principally in Massachusetts, although bills also have been introduced in Ohio, Minnesota, and New Jersey. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 143

the individual may have been “clean” for a period before the conviction record is sealed

because he or she was in prison during that entire period... or because he or she was arrested

but the criminal-justice process was winding its way laboriously through our court system60

with its significant procedural delays and backlogs.61

Should employers be able to conduct criminal-background investigations of job

applicants? Should employers be able to take every reasonable and appropriate step to screen

out convicted felons with an established history of criminal behavior, especially in such

circumstances as:

• Day-care centers, juvenile sports leagues, and summer camps

screening out convicted pedophiles;

• Pharmaceutical companies and drug stores screening out

convicted drug dealers;

Defense contractors manufacturing guided missiles or

employing civilians on military bases screening out those

convicted of espionage;

• Banks and credit-card companies screening out convicted

embezzlers;

• Hospitals and medical clinics screening out convicted drug

abusers;

• Retirement and assisted-living homes screening out convicted

arsonists;

• Taxicab and messenger/delivery-service companies screening

out those convicted of reckless endangerment or driving underthe-influence;

60 Significant delays in our court system are well-documented. One study found that lawsuits took between twoand-a-half and eight years to resolve depending on the nature of the case and the jurisdiction involved.

Evaluating and Using Employer Instituted Arbitration Rules and Agreements in Employment Discrimination

and Civil Rights Actions in Federal and State Courts (ADLI-ABA Course of Study, April 28-30) 875, 894

(1994). While criminal cases are docketed and tried more expeditiously than civil cases, the delays in

prosecution, discovery, motions, trials, and appeals can and do routinely take multiple years, especially in major

metropolitan areas with greater backlogs.

61 The backlog in the federal courts is significant – 23,000 cases had been pending in U.S. District Courts for

two-to-three years in 2006, and another 50,000 had been pending between one-to-two years, and this does not,

of course, include appeals and remands. U.S. District Courts: Civil Cases Pending by Length of Time Pending

tbl.4.11, available at http://www.uscourts.gov/judicialfactsfigures/2006/Table411.pdf.
144 Speakers’ Statements

• School districts and youth recreational centers screening out 

those convicted of statutory rape;

• Power plants and petroleum refineries screening out convicted 

terrorists;

• Rehabilitation centers and counseling programs screening out 

those convicted of spouse or child abuse;

• Retailers and wholesalers screening out those convicted of 

theft; and

• Employers with diverse workforce populations or diverse 

clients or patients screening out those convicted of hate 

crimes?

Really, shouldn’t every employer have every legitimate option – as appropriate and 

necessary – for ensuring the protection of its employees, customers, and assets, and the 

public at-large?

There are legitimate privacy interests at stake, and rehabilitation and re-entry into the 

workforce – under appropriate circumstances – of ex-offenders is a highly appropriate 

societal goal.

However, a blanket prohibition on all or most criminal-background checks – as some 

criminal-rights’ advocates support – would promote the indiscriminate concealment of arrest 

and conviction information on even the most dangerous of convicted felons, and represents: 

(1) bad public policy; (2) a compromise of employee and public safety; (3) a major 

impediment to employers’ ability to minimize their exposure to legal liability; and (4) a 

prescription for dramatically more crime and more severe crime.

While the re-integration into society of former convicts is a compelling and 

worthwhile goal, in American society we frequently lose sight of the need to protect the 

rights of victims (and potential victims) by focusing too intently on protecting the rights of 

criminals. 

IV. Ironically, the EEOC Litigates Against Employers That Do Not Conduct 

Criminal-Background Checks

The EEOC itself understands the relevance and value of criminal-background checks, 

even in positions that that are not clearly safety-sensitive. Indeed, the EEOC recently 

obtained a $5.8 million settlement in a pattern-and-practice sexual harassment case in the 
Criminal Background Checks and the EEOC’s Conviction Records Policy 145

Eastern District of California in which the EEOC criticized the employer for not doing a

criminal-background check.62

The basis of the EEOC’s lawsuit was the allegation that ABM Industries, a janitorialservice company, was negligent in not reviewing the criminal history of a supervisor, Jose

Vasquez. In response to the employer’s Motion for Summary Judgment, the EEOC filed a

brief that repeatedly – in fact, five times – referred to Mr. Vasquez as a “convicted” sex

offender.

Indeed, on page six of its Memorandum of Points and Authorities, the EEOC directly

attacked ABM because “[D]efendants failed to initiate an investigation into Vasquez’

criminal background.” In fact, the EEOC felt Vasquez’ prior conviction outside ABM’s

workplace was so important that during the investigation, the EEOC informed ABM of

Vasquez’ conviction.63

The EEOC states that it “filed this lawsuit to vindicate the public interests and the

interests of the Charging Party and class members throughout the Central Valley of

California.”64

V. Criminal Recidivism

While re-integration into society for ex-convicts is a worthwhile goal, and while

acquiring gainful employment for ex-convicts is an important step in preventing criminal

recidivism (without an income, what choice is left for an ex-offender but to return to crime?),

the reality is that former criminals are highly likely to become current criminals.

In fact, at a conference conducted by the American Bar Association’s Commission on

Effective Criminal Sanctions, Professor Alfred Blumstein of the Heinz School at CarnegieMellon University reported that, based on the preliminary findings of his research, as many

as 80 percent of those released from prison after criminal convictions will be convicted of

crimes again, with the percentages especially high for those convicted of burglary and

robbery.65

In 2002, the U.S. Department of Justice’s Bureau of Justice Statistics (“BJS”)

released a study of criminal recidivism covering released inmates from 15 states (hereinafter

62 EEOC v. ABM Indus., et al., 1:07-cv-1428, see also, ABM Industries Settles EEOC Sexual Harassment Suit

For $5.8 Million, available at http://www.eeoc.gov/eeoc/newsroom/release/9-2-10.cfm (last viewed 8/3/2011)

63 Id.

64 Id. at 2.

65 Blumstein, Alfred, Redemption in the Presence of Background Checking – Some Preliminary Results,

Conference on Fair Use of Criminal Records in Employment, ABA Commission on Effective Criminal

Sanctions, Washington, DC, January 12, 2008.
146 Speakers’ Statements

“the study”). The study tracked 272,111 former inmates for three years after their respective

releases from prison in 1994. In defining the term “recidivism,” the study used four separate

measures: rearrest, reconviction, resentence to prison, and return to prison with or without a

new sentence.66

The study found that of the 272,111 prisoners released in 1994, 67.5 percent of the

prisoners were rearrested for a new offense (almost exclusively a felony or a serious

misdemeanor), 46.9 percent were reconvicted for a new crime, 25.4 percent were resentenced

to prison for a new crime, and 51.8 percent were back in prison serving time for a new

sentence or a technical violation of their release.67

Thus, more than half were back in prison within three years. By contrast, the general

population has a 6.6 percent chance that they will serve time in prison during their lifetime.

68

This means that criminal recidivists are nearly eight times more likely to be incarcerated

again within three years than an average American is to be incarcerated for the first time.

(A) First-Time Offenders and Recidivism

While criminal recidivism is a major problem in the

United States criminal-justice system, first-time offenders have

accounted for a large increase in overall crime in the country.

Between 1974 and 2001, the number of adults incarcerated

increased by 3.8 million. Nearly two-thirds of the 3.8-millionperson increase occurred as a result of an increase in first-time

incarceration rates.69

However, once an individual has entered the criminaljustice system, the person is more likely to be arrested again

within three years of release. Within three years of a convict’s

release, even 40.6 percent of prisoners with just one prior arrest

were rearrested.70

Moreover, the more arrests an ex-convict has, the more

likely he or she will be rearrested. Within three years, 47.5

66 Bureau of Justice Statistics Special Report: Recidivism of Prisoners Released in 1994, U.S. Department of

Justice, NCJ 193427, Patrick A. Langan, Ph.D., David J. Levin, Ph.D., June 2002, at pg. 1.

67 See id. This, of course, does not include the substantial number of crimes committed for which the offenders

are not apprehended. No one is charged in more than 80 percent of the crimes committed in America today.

68 Bureau of Justice Statistics, U.S. Department of Justice, Criminal Offender Statistics, at

http://www.ojp.usdoj.gov/bjs/crimoff.htm.

69 See id.

70 See, supra, note 61, at pg. 10.
Criminal Background Checks and the EEOC’s Conviction Records Policy 147

percent of people with two prior arrests were rearrested, 55.2

percent of those with three prior arrests were rearrested, and

59.6 percent of those with four arrests were rearrested. Across

the board, the number of prior arrests directly correlates to the

chances that an individual will be rearrested within any given

time period – the more prior arrests, the higher the percentage

of rearrests. At the high end, individuals with 16 or more prior

arrests had an 82.1 percent chance of being rearrested.71

The annual proportion of federal offenders with “zero

criminal history points” is substantial. However, it is

substantially lower than the percentage of federal offenders

who are recidivists.72

In fact, overall, significantly more crime is being

committed by recidivists than by first-time offenders – almost

50 percent more. The U.S. Sentencing Commission report

found that in 2004, 57.8 percent of federal offenses were

committed by individuals with at least one prior conviction.73

When compared to the adult population in the United States as

a whole, first-time offenders are only a very small subset of the

general population.

Therefore, the odds that a released prisoner will commit

another crime are much higher than the odds that someone who

has never committed a crime will start committing crime.

(B) Total Crime Compared to Recidivist Crime

BJS also attempted to measure the percentage of all

crimes that were committed by released prisoners. While the

study did not precisely measure what fraction of all crimes the

released prisoners accounted for, it calculated the number of

arrests for seven serious crimes – murder, rape, robbery,

71 See id.

72 Research Series on the Recidivism of Federal Guideline Offenders, Recidivism and the ‘First Offender,’ A

Component of the Fifteen Year Report on the U.S. Sentencing Commission’s Legislative Mandate, May 2004,

(defining “zero criminal history points” as individuals with no prior contact in the criminal-justice system, those

with prior arrests but no convictions, and those with minor convictions but only for limited offenses such as

hitchhiking, juvenile status offenses, loitering, and minor traffic offenses). available at

http://www.ussc.gov/Research/Research_Publications/Recidivism/200405_Recidivism_First_Offender.pdf (last

viewed 8/3/2011)

73 See id.
148 Speakers’ Statements

aggravated assault, burglary, larceny, and motor vehicle theft.

74

Released prisoners were arrested within three years of their 

release from prison for homicide at a rate 53 times higher than 

the homicide arrest rate for the adult population.

75 Between 

1994 and 1997, 8.4 percent of homicides overall were 

committed by prisoners released in 1994 – a figure which does 

not include released prisoners who had crossed state lines.76

The percentage of homicides attributable to released prisoners 

would be substantially greater if it included these additional 

individuals. Regarding the threat – and the reality – of 

workplace violence, surely the EEOC cannot ignore these

numbers.

(C) Specific Offense Recidivism – “Specialists”

“Specialists” are prisoners who, after being released, 

commit the same crime that resulted in their imprisonment.

Different offenses show varying degrees of specialization. The 

types of convictions that showed high degrees of specialization 

were robbery (13.4 percent), assault (22 percent), burglary 

(23.4 percent), and motor vehicle theft (11.5 percent).77

Further analysis of released prisoners shows a striking 

pattern among categories of offenses previously thought to be 

non-specialists. The study analyzed the ratio of ex-convicts 

being rearrested for the same or similar offense compared to 

rearrest for a different offense. Someone who committed a rape 

was 4.2 times more likely to be rearrested for rape than if the 

initial conviction was for a crime other than rape. The ratios of 

other offenses were also high. Released prisoners with other 

sexual-assault records were 5.9 times more likely to be 

rearrested for sexual assault. Released prisoners with prior 

fraud convictions were 5.3 times more likely to be rearrested 

for fraud. Released prisoners with prior drug offenses were 2.1 

times more likely to be rearrested for another drug offense.

 74 See, supra, at note 61, at pg. 5.

75 See id., at pg. 6.

76 See id.

77 See id., at pg. 9. These percentages, again, refer to crimes committed in the three-year period between 1994 

and 1997 by prisoners released from prison in 1994 alone.
Criminal Background Checks and the EEOC’s Conviction Records Policy 149

Thus, recidivism is not only prevalent, a pattern of sameoffense recidivism is highly prevalent.78

(D) Recidivism and Violence

The U.S. Sentencing Commission report found an 

especially troubling statistic regarding the linking of violent 

crimes to recidivism. The report found that recidivists were 

much more likely to have a weapon, use actual or threatened 

violence, and injure or threaten to injure a victim during the 

commission of a crime.

79 The report also suggests that 

regardless of the number of convictions, the more arrests an 

individual has, the more likely the arrests involve weapons, 

injury, or violence.80 The BJS study found that of the 

recidivists released from prison in 1994, 61.7 percent of the 

recidivists were rearrested for a violent offense regardless of 

what their original offense was.81 Again, these statistics are 

highly relevant to the issue of workplace violence, and highly 

relevant to employers’ legitimate commitment to criminalrecords checks.

(E) Recidivism and Employment

Some evidence suggests that access to employment 

reduces recidivism. Indeed, numerous articles have been 

written maintaining the close relationship between postincarceration employment and reduced recidivism. This theory 

purports that employment provides for basic needs that 

criminal activity previously funded. Indeed, work-release 

reentry programs have made an impact on recidivism.

Although many of the programs were not specifically intended 

to reduce recidivism, studies of some work programs report 

reduced recidivism rates, but qualify these findings by 

admitting biased data. These work-release programs are 

generally subject to the inmate’s election. The self-selection 

process of program participants’ results in a group that is less 

likely to revert to criminal behavior with or without the 

 78 See id.

79 See, supra, note 67, at pg. 9.

80 See id., at pg. 16.

81 See, supra, note 61, at pg. 9, table 10.
150 Speakers’ Statements

program.82 Simply put, ex-convicts clearly are unlikely to

participate in such surveys if they are continuing to engage in

criminal behavior, or to be honest about their resumption of

criminal behavior if they do choose to participate in such

surveys.

Some studies have argued that without income from

employment, released prisoners are more likely to turn to crime

for economic support. Employment, however, is important for

many reasons beyond the basic need for income. Employment

also provides a stabilizing routine, occupies time that might

otherwise be used for illegal activity, keeps individuals

responsive to employer’s behavioral demands, and provides a

non-stigmatized social role. Although work is important, not all

types of employment have the same effect on recidivism.

Higher wages are an important factor in reducing recidivism.

Generally speaking, only jobs that are high quality in terms of

pay or viable careers have been shown to reduce recidivism.83

While high-paying employment may reduce recidivism

rates, studies of federal programs meant to provide

employment assistance have demonstrated very limited

reductions in recidivism. These programs generally focus only

on the need for employment, not other serious issues that many

released inmates face, such as substance abuse, mental illness,

the stigma associated with their criminal past, and the lack of

education, skills, and/or work experience.84 In addition, the

post-incarceration positions that former inmates generally hold

are not high-paying or career-oriented. Former inmates will not

have the ability to obtain a satisfactory job or stay gainfully

employed without programs that address these other issues.

Access to employment is therefore not the single

answer in addressing criminal recidivism. Legislation and

government programs must focus on the entire set of problems

that former inmates face, rather than limiting employers’

access to information in an attempt to artificially and

inappropriately bolster employment rates regardless of the

human and financial costs. To truly re-integrate former inmates

82 Bushway, Shawn, Reentry and Prison Work Programs, Urban Institute, May 2003, available at

www.urban.org/url.cfm?ID=410853. (last viewed 8/3/2011)

83Lise McKean, Current Strategies for Reducing Recidivism, Center for Impact Research, August 2004, at pg.

19. available at: http://www.impactresearch.org/documents/recidivismfullreport.pdf (last viewed Aug. 4, 2011)

84 See id.
Criminal Background Checks and the EEOC’s Conviction Records Policy 151

into society, employment represents only one part of the 

equation. 

Recidivism statistics are particularly troubling when viewed in light of the threat in a 

small number of states to prevent or restrict criminal-background checks in employment.

Entrance into the U.S. criminal-justice system dramatically increases the likelihood that 

individuals will continue their criminal behavior.

To deny criminal-records access would leave employers in the dark – a frightening 

“dark.” Employers could have no knowledge of whether they would be hiring an individual 

with a criminal background, how extensive that criminal background is, and whether the 

criminal background is relevant (from a time and/or substance standpoint) to the job for 

which the applicant is being considered.

As research has clearly demonstrated, individuals with criminal backgrounds are 

much more likely to commit another crime than the general U.S. population (as much as 80 

percent become criminal recidivists; only six percent of Americans are ever convicted of a 

crime).

85

That means employers would be putting themselves, their employees, and the public 

at-large at substantially higher risk by hiring an individual who has a high statistical 

probability of engaging in criminal activity. In addition, employment alone has not been 

proven to reduce recidivism. Ultimately, only effective programs to increase skills and 

education (and therefore increase eligibility for higher-paying jobs) and to reduce substance 

abuse and treat mental illness will have a positive effect on reducing recidivism.

VI. The Links Between Crime and Substance Abuse, and Between Substance Abuse 

and Recidivism

In considering crime in America, it is impossible to ignore the highly detrimental and 

incestuous impacts of drug dealing, drug-related crime, and substance abuse.

Two questions need to be answered: (1) What are the relationships between crime and 

substance abuse, and between crime and substance-abuse recidivism?; and (2) Are substance 

abusers more likely to be criminal recidivists than individuals who do not abuse – or have not 

abused – drugs or alcohol?

A direct correlation exists between substance abuse and crime. Nearly one-quarter of 

federal prison inmates, and one-third of state prison inmates, reported being under the 

influence of drugs or alcohol when they committed their respective offenses. While there is 

debate as to whether the correlation between substance abuse and crime consistently equates 

to causation, certain types of crime, such as violent crime and property crime, clearly 

demonstrate a direct causal link. 

 85 See, supra, notes 10 and 63.
152 Speakers’ Statements

 Drugs and alcohol are prevalent in crime. One U.S. Government study showed that

more than 36 percent of the 5.3 million convicted adult offenders under the jurisdiction of

probation authorities, jails, prisons, or parole agencies had been drinking at the time of the

offenses for which they had been convicted.86 Nearly half of those convicted of assault and

sentenced to probation had been drinking when the offense occurred.87

In fact, 68 percent of the criminal-justice population (prison inmates) “meet the

criteria for substance abuse or dependence,” according to the DOJ’s Amy Solomon in her

recent testimony to the EEOC.88

This is brought into sharper focus by the fact that at least 90 percent of substance

abusers with legal and/or illegal drug problems relapse in the short term according to the

National Institutes of Health – a strikingly high recidivism rate. 89 If more than two-thirds of

convicted felons are drug abusers or addicts, and more than 90 percent of those are subject to

short-term recidivism, isn’t this more of a drug treatment and rehabilitation problem (and,

therefore, not within the mandate of the EEOC) than an employment-related race problem?

Moreover, does anyone cogently question an employer’s right or interest in screening

out drug abusers?

Thus, more than two-thirds of convicted felons have illegal drug problems.

Employers routinely do preemployment drug testing to screen out drug abusers from their

workforce – and rightfully so – and the case law is overwhelmingly in favor of employers’

rights to do so. So why might it be inappropriate to screen out a job applicant for a convicted

rape or embezzlement, and not be inappropriate to screen out an applicant for smoking

marijuana?

Moreover, based on the DOJ’s own statistics, arguably a high proportion of those

denied employment because of a criminal-records check would have been denied

employment (or subsequently dismissed from employment) based on a positive drug-test

result.

86 Lawrence A. Greenfeld, Alcohol and Crime: An Analysis of National Data on the Prevalence of Alcohol

Involvement in Crime, Bureau of Justice Statistics, U.S. Department of Justice, prepared for the Assistant

Attorney General’s National Symposium on Alcohol Abuse and Crime, April 5-7, 1998, at pg. 20.

87 See id., at pg. 21.

88 See testimony of Amy Solomon, at 5. Jennifer Karberg and Doris James, “Substance Dependence, Abuse,

and Treatment of Jail Inmates, 2002,” Special Report NCJ 209588 (Washington, DC: U.S. Department of

Justice, Bureau of Justice Statistics, 2005). http://www.ojp.usdoj.gov/bjs/abstract/sdatji02.htm.

89 Health A to Z: Substance Abuse and Dependence, at http://www.healthatoz.com/healthatoz/Atoz/common/

standard/transform.jsp?requestURI=/healthatoz/Atoz/ency/substance_abuse_and_dependence.jsp. (last viewed

Aug. 8, 2011)
Criminal Background Checks and the EEOC’s Conviction Records Policy 153

At any rate, victims of violent crimes perceived drug use by the assailant 37 percent 

of the time.90 Among victims of violence who were able to describe the offender’s use of 

drugs, about two-thirds of those in an intimate relationship with the offender reported the 

offender’s drinking at the time of the crime. These individuals were current or former 

spouses, boyfriends, or girlfriends. Based on victim reports, on average, each year 

approximately 183,000 rapes and sexual assaults involve alcohol use by the offender, as do 

more than 197,000 robberies and 661,000 aggravated assaults, and nearly 1.7 million simple 

assaults. Combined abuse of drugs and alcohol accounted for 18 percent of the alcoholinvolved rapes and sexual assaults, 36 percent of the alcohol-involved robberies, 24 percent 

of the aggravated assaults in which the offender was drinking, and 15 percent of the simple 

assaults involving a drinking offender.91

(A) Substance Abusers and Recidivists

Substance abuse is a chronic relapsing illness.92 In 

2009, an estimated 21.8 million Americans aged 12 or older 

were current illicit drug users and had used an illicit drug 

during the previous month. This estimate represents 8.7 percent 

of the population age 12 and older. 93 In 2009, an estimated 

22.5 million persons age 12 and older were classified with 

substance dependence or abuse in the past year (8.9 percent of 

the population age 12 and older). Of these, 3.2 million were 

classified with dependence on, or abuse of, both alcohol and 

illicit drugs, 3.9 million were dependent on or abused illicit 

drugs but not alcohol, and 15.4 million were dependent on or 

abused alcohol but not illicit drugs. 94

In 2009, the number of persons age 12 and older 

needing treatment for an alcohol-use problem was 19.3 million 

(7.7 percent of the population age 12 and older). Of these, 1.7

million (0.7 percent of the total population and 8.8 percent of 

the people who needed treatment for an alcohol-use problem) 

received alcohol-use treatment at a specialty facility. Thus, 

 90 See id., at pg. 3.

91 See id.

92 Haiyi Xie, Ph.D. et. al., Substance Abuse Relapse in a Ten-Year Prospective Follow-up of Clients With 

Mental and Substance Use Disorders, Psychiatric Services, Vol. 56, No. 10, October 2005, at pg. 1282.

93 Department of Health and Human Services, Substance Abuse and Mental Health Service Administration: 

2009 National Survey on Drug Use & Health, at pg. 16. (These statistics reflect use of marijuana, cocaine, 

heroin, hallucinogens, and inhalants; and the non-medical use of prescription-type pain relievers, tranquilizers, 

stimulants, and sedatives.)

94 See id., at pg. 73. 
154 Speakers’ Statements

there were 17.6 million people who needed treatment but did 

not receive treatment at a specialty facility for an alcohol-use 

problem.95

Addiction to a drug is a very powerful – and destructive 

– force. Recovery from substance abuse is notoriously difficult, 

even with exceptional treatment resources. The National 

Institute on Alcohol Abuse and Alcoholism at the National 

Institutes of Health cited evidence that 90 percent of alcoholdependent users experience at least one relapse within the four 

years after treatment. Relapse rates for heroin and nicotine 

users are believed to be similar.96

Thus, those who have formerly had a substance-abuse 

problem (addiction and/or alcoholism) have at least a 90-

percent probability of a relapse in the short term, while nonsubstance-abusers have only about a ten-percent chance of ever

developing a substance-abuse problem. 

(B) Drug Users in the General Population Are More 

Likely Than Non-Users to Commit Crimes

Of inmates in local jails in 2002, 68.7 percent reported 

using drugs at least once a week for at least a month. In 

addition, 28.8 percent of inmates in local jails in 2002 reported 

using drugs at the time of the offense.97 In 2006, adults aged 18 

or older who were on parole or supervised release from jail 

during the past year had higher rates of dependence on, or 

abuse of, a substance (36.9 percent) than their counterparts 

who were not on parole or supervised release during the past 

year (9.1 percent).98 The rate of substance dependence or abuse 

was 39.7 percent among adults who were on probation during 

2006, which was four-and-a-half times higher than the rate of 

adults who were not on probation during the past year (8.7 

percent).99

 95 See id, at pg. 87.

96 See, supra, note 84.

97 Bureau of Justice Statistics, U.S. Department of Justice, Substance Dependence, Abuse, and Treatment of Jail 

Inmates, NCJ 209588, July 2005.

98 See, supra, note 86, at pg. 74.

99 See id. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 155

A U.S. Department of Health and Human Services 

(“HHS”) survey asked individuals about their drug and alcohol 

use and involvement in acts that could get them in trouble with 

the police. Data for 2005 showed that among adults, those who 

use cannabis (marijuana) or cocaine were much more likely to 

commit crimes of all types than those who did not use these 

substances. Of those arrested for a violent crime, 63.1 percent 

also reported using illicit drugs in the year prior to their 

arrest.100 Individuals who had been arrested two or more times 

for the most serious “Part I” crimes were more likely to have 

used an illicit drug in the past year than those who were only 

arrested once (69.8 percent versus 55.2 percent).101

(C) Factors Related to Drug Use and Crime – the 

Goldstein Framework

In 1985, Paul Goldstein, the then-Deputy Director of 

Narcotics and Drug Research Inc., was commissioned by the 

National Institute on Drug Abuse to write a series of studies 

that described the connection between drugs and violence.

Goldstein looked at drug-related violence and created three 

distinct categories of drug crime. Goldstein classified drug 

crimes as psychopharmacological, economic-compulsive, and 

systemic. The psychopharmacological category was for 

violence due to the direct acute effects of a psychoactive drug 

on the user. The economic-compulsive category encompassed 

the violence committed instrumentally to generate money to 

purchase expensive drugs. Finally, the systemic category 

covered violence associated with the marketing of illicit drugs, 

such as turf battles, contract disputes, etc. 102

When the Goldstein framework was applied to 

homicides in New York State in 1984 and New York City in 

1988, it was found that drugs and alcohol were important 

causes for a large number of homicides in both samples. For 

the 1988 sample in New York City, near the height of the crack 

 100 National Survey on Drug Use and Health. Office of Applied Studies, Substance Abuse and Mental Health 

Services Administration, NSDUH Report: Illicit Drug Use Among Persons Arrested for Serious Crimes, 

December 16, 2005.

101 See id., at pg. 3. Part I offenses include criminal homicide, forcible rape, robbery, aggravated assault, 

burglary, larceny-theft, motor vehicle theft, and arson.

102 Goldstein, Paul, The Drug/Violence Nexus: A Tripartite Conceptual Framework, Journal of Drug Issues, 14, 

1985, at pgs. 493-506.
156 Speakers’ Statements

epidemic, Goldstein classified 53 percent of 414 homicides as 

drug- or alcohol-related.103

1. Psychopharmacological

When other researchers applied the 

Goldstein framework, they found that purely 

psychopharmacological violence (as opposed to 

economic-compulsive or systemic) is rare and 

attributable mostly to alcohol rather than illicit 

drugs. If the psychopharmacological claim is 

that drugs directly promote violent behavior 

absent any situational provocation or stressors, 

then that claim is probably wrong. However, 

when taking into account the individual’s 

psychological health and the situation leading to 

the violent crime, drugs – and, even more so, 

alcohol – can amplify the psychological and 

situational facilitators of aggression.104

2. Economic-compulsive

Clear evidence exists to form a 

relationship between crime and drugs under 

Goldstein’s economic-compulsive category. In 

2004, 17 percent of state prisoners and 18 

percent of federal inmates said they committed 

their current offense to obtain money for 

drugs.105

 103 National Institute of Justice: The Research, Development, and Evaluation Agency of the U.S. Department of 

Justice. Robert MacCoun, Beau Kilmer, and Peter Reuter, Research on Drugs-Crime Linkages: The Next 

Generation, July 2003, at pg. 66.

About a quarter of convicted property 

and drug offenders in local jails in 2002 had 

committed their crimes to get money for drugs, 

compared to five percent of violent and publicorder offenders. State prisoners in 2004 for 

property (30 percent) and drug offenses (26 

percent) were more likely to commit their 

crimes for drug money than violent (10 percent) 

104 See id. 

105 Bureau of Justice Statistics, U.S. Department of Justice, Drug Use and Dependence, State and Federal 

Prisoners 2004, NCJ 213530, October 2006.
Criminal Background Checks and the EEOC’s Conviction Records Policy 157

and public-order (7 percent) offenders.106

Inmates in local jails convicted of burglary had

the highest rate of substance dependence or

abuse (85 percent).107 Money-generating crimes

quite clearly account for the majority of

economic-compulsive drug crimes.

3. Systemic Violence

Some drug markets are more prone to

market-related violence than others. While the

market for marijuana is generally not violent,

the crack market is particularly prone to marketrelated violence.108

The National Institute of Justice (“NIJ”)

suggested four factors account for the increase

in violence in the crack market: (1) the youth of

the participants increase the likelihood for

violent crime. NIJ believes that the young are

particularly likely to lack foresight, judgment,

and restraint, and thus engage in violence to

settle disputes; (2) the high value of the drugs

themselves lead to increased violence; (3) the

intensity of law enforcement increases the

likelihood that drug transactions are conducted

under considerable uncertainty, and as a

consequence, situational violence can be high;

and (4) the indirect consequences of drug use

render some drug users more violent and

aggressive, causing dealers to be more likely to

carry and use weapons and, similarly, to make

this more likely among their customers. This in

turn promotes unreliable behavior among both

users and dealers as well as subsequent

retaliation by their suppliers.109

106 Bureau of Justice Statistics, U.S. Department of Justice, Drug and Crime Facts, NCJ 165148, April 12, 2007.

(26.9 percent of local jail inmates who committed property crimes did so for money for drugs. 24.8 percent of

local jail inmates who committed drug crimes did so for money for drugs.)

107 Bureau of Justice Statistics, U.S. Department of Justice, Drug and Crime Facts, May 20, 2007, at

http://www.ojp.usdoj.gov/bjs/dcf/duc.htm

108 Research on Drugs-Crime Linkages: The Next Generation, July 2003, at pg. 74.

109 See id.
158 Speakers’ Statements

Under the Goldstein framework, drugs

have a distinct impact on overall crime. Drug

use increases the need for money, thus

increasing property crime. Use of drugs may

increase an individual’s general aggression

when a predisposition for violence already

exists. Finally, some drugs are accompanied by

varying degrees of market-related crime.

(D) Drugs and Driving

DUI offenses are a major source of drug- and alcoholrelated crime, injuries, and fatalities. In 2005, nearly 1.4

million drivers were arrested for driving under-the-influence of

alcohol or narcotics.110 In 2006, an estimated 17,602 people

died in alcohol-related traffic crashes – an average of one

person every 30 minutes. These deaths constitute 41 percent of

the 42,642 total traffic fatalities. Of these, an estimated 13,470

involved a driver with an illegal blood-alcohol content (.08 or

greater).111 In 2000, 1,400 fatalities occurred in crashes

involving alcohol-impaired or -intoxicated drivers who had at

least one prior driving-while-intoxicated (“DWI”) conviction.

This represents 8.5 percent of all alcohol-related fatalities.112 In

addition, 34 percent of the offenders in jail and eight percent of

the offenders on probation reported having been convicted of

three or more DWI offenses in their lifetime.113

(E) Drug Use and Criminal Recidivism

As discussed earlier, the U.S. Department of Justice’s

Bureau of Justice Statistics issued a special report regarding

recidivism of prisoners released in 1994. The report followed

272,111 former inmates for three years after their release from

prison in 15 different states. Of the prisoners released whose

110 U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States 2005: Uniform

Crime Reports, Washington, D.C., FBI, 2005 [cited 2006 Nov 3].

111 National Highway Traffic Safety Administration, 2006 Traffic Safety Annual Assessment – A Preview,

DOT 810 791, Washington, D.C., National Highway Traffic Safety Administration, July 2007, at http://wwwnrd.nhtsa.dot.gov/Pubs/810791.PDF. (last viewed Aug. 8, 2011)

112 Angel Outside My Window – Don’t Drink and Drive, at http://aomw.org/.

113 National Highway Traffic Safety Administration, A Guide to Sentencing DWI Offenders, 2005 HS 810 555,

Washington, D.C., National Highway Traffic Safety Administration, 2005, at

http://www.nhtsa.dot.gov/people/injury/alcohol/DWIOffenders/pages/intro.htm. (last viewed Aug. 8, 2011)
Criminal Background Checks and the EEOC’s Conviction Records Policy 159

most serious offense was a drug offense, 66.7 percent were 

rearrested within three years. Of all drug-crime recidivists, 49.2 

percent returned to prison within three years of their release. Of 

those previous drug offenders rearrested, 41.2 percent were 

rearrested for a new drug offense.114

As discussed above, DWI recidivism is a major 

problem. The National Highway Traffic Safety Administration 

found that the majority of DWI offenders:

• Are age 25-to-45, male, white, and unmarried; 

have blue-collar jobs; prefer beer and drink it 

frequently; tend to drink at bars; and tend to be 

“problem drinkers” (i.e., repeat DWI offenders, 

drink excessively [5 or more drinks in a 

session], and have problems associated with 

alcohol use); and

• Tend to have experienced alcohol-related 

problems in the past and tend to be extroverted, 

impulsive, aggressive, hostile, and anti-social.115

DWI arrestees also are much more likely to have more 

arrests for non-traffic offenses including, but not limited to, 

assault and public drunkenness.116

The statistics regarding overall rearrest rates for drugrelated crimes are difficult to quantify. Due to different 

definitions of the phrase “drug-related,” studies differ on how 

to classify crimes. For example, the FBI conducted a study 

entitled “Crime in the United States: Uniform Crime Reports.”

In the study, the FBI did not include as drug-related a burglary 

committed by someone under the influence of drugs or a 

murder that occurs during a robbery committed to obtain 

money to buy drugs.117 The Department of Justice’s Bureau of 

Justice Statistics classifies crimes in the same manner.

 114 See, supra, note 61. Drug offenses include drug trafficking, drug possession, and other drug-related offenses.

115 See, supra, note 105.

116 See id.

117 Executive Office of the President, Office of National Drug Control Policy, Drug Policy Information 

Clearinghouse: Fact Sheet, March 2000, at pg. 5. 
160 Speakers’ Statements

Regardless of the problems in defining drug-related

crime, drugs clearly have a major impact on crime. In addition,

under the Goldstein framework, drug users are likely to

continue their criminal habits due to the

psychopharmacological, economic-compulsive, and systemic

pressures.

Drugs and alcohol clearly and substantially are directly related to the incidents and

severity of crime in America today.

Whether the effects of drugs cause violent behavior and/or criminal activity

(psychopharmacological effects), the need for money by chronic substance abusers or addicts

to support their habits leads to crime (economic-compulsive), or the drug market creates

criminal activity, such as stealing and dealing, and the violence associated with them

(systemic), one plain fact stands out: drugs and crime are inextricably linked.

Many convicted criminals were under the influence of drugs and/or alcohol at the

time they committed their crimes. Drugs are also prevalent in recidivist crimes. Many

released prisoners are reconvicted for drug-related offenses, and many more abuse drugs and

alcohol.

Moreover, a very high percentage of crime is caused by those who are chronic

substance abusers who are drug- and/or alcohol-dependent. Recidivism rates by chronic

substance abusers, addicts, and alcoholics are extremely high, and multiple relapses are the

rule, not the exception. The recidivism of the substance abuser after “successful”

rehabilitation often equates to criminal recidivism by the substance abuser.

“Former” substance abusers will always constitute a much higher at-risk population

for future substance abuse than the public at-large, and – correspondingly – ex-criminaloffenders will always be a much higher at-risk population than the public at-large for future

criminal offenses. You cannot separate one from the other. The former is a significant subset

of the latter. The extensive and well-documented incidence of substance abuse

addiction/alcoholism recidivism translates directly into criminal recidivism.

VII. Conclusion

“Nothing we do is more important than hiring and developing people. At the end of the day

you bet on people, not on strategies.”118

So said Larry Bossidy, former Chairman of the Board of Honeywell. Mr. Bossidy was

right – nothing is more important to a company than who it hires, and we do “bet” on the

people we hire.

118 Lawrence A. Bossidy, Execution: The Discipline of Getting Things Done, at http://www.brainyquote.

com/quotes/quotes/l/larrybossi307853.html (last viewed Aug. 3, 2011)
Criminal Background Checks and the EEOC’s Conviction Records Policy 161

But we don’t want to bet too much, we don’t want to risk too much, we don’t want to 

“bet the farm” on any one wager – or one person, especially if that person is a convicted 

felon with a documented history of crime and/or violence.

Let’s not bet. Let’s play it safe.

We cannot give guns and badges, keys and combinations, passcodes, checkbooks, our 

children, and our trust to those who are at a high risk of abusing it, to those who may have as 

high as an 80-percent chance of criminal recidivism, to those who may be wedded to 

terrorism and anarchy. We cannot gamble with people’s lives – the lives of our people who 

expect more and deserve our protection.

As the comments above demonstrate, to restrict background checks is not in the 

interest of any American.

The existing law on arrest and conviction records appropriately addresses the rights 

and responsibilities of both employees and employers, both those with a criminal history and 

those without one, and both those who need employment reentry and those who need to be 

protected, especially those who are in a high at-risk population such as children, the elderly, 

and the infirm. 

Therefore, we should refrain from undermining this current legal balance of interests, 

and/or would create a more litigious environment, a more legally suspect cause of action, a 

more dangerous American workplace, and a larger pool of employer, employee, and public 

victims by unduly restricting the rights and incentives of employers to conduct lawful and 

appropriate criminal-background checks.

On behalf of the Counsel for Employment Law Equity and Jackson Lewis LLP, I 

thank you for your consideration of my views and offer my willingness to provide future 

information and input which would be helpful to your deliberations. 

***
162 Speakers’ Statements

William A. Dombi

STATEMENT OF WILLIAM A. DOMBI

VICE PRESIDENT FOR LAW

NATIONAL ASSOCIATION FOR HOME CARE & HOSPICE

Before the

UNITED STATES ON CIVIL RIGHTS

December 7, 2012

Thank you for the opportunity to present testimony today. The issues involved in screening 

prospective employees for criminal record backgrounds have been longstanding in home 

care, presenting a myriad of challenges in complying with state and federal laws regulating 

the home care community as health service providers, engaging in best practices in 

employment and service, and fully respecting the civil rights of applicants for employment as 

well as existing employees. My testimony focuses on the recent Enforcement Guidance on 

the Consideration of Arrest and Conviction Records in Employment Decisions under Title 

VII of the Civil Rights Act of 1964 issued by the Equal Employment Opportunity 

Commission.

At the outset, it must be stated that the National Association for Home Care & Hospice 

(NAHC) and its members fully support efforts to ensure all civil rights guaranteed to 

employees and applicants for employment. Likewise, NAHC supports all appropriate efforts 

to protect the highly vulnerable patient population served in home care along with the 

integrity of the numerous federal and state programs that finance this essential care.

In that regard, NAHC strongly supports the use of criminal background checks as an 

employment screen for individuals who have direct patient contact, access to health 

information on patients, or responsibilities related to health care financing, including 

payments by federal and state health care programs. Comprehensive criminal background 

checks are an essential tool for home care providers in meeting their responsibilities to 

protect patients, payers, and their organization.

Background on Home Care

Home care is a very diverse set of services provided to every age group throughout the 

nation. It is estimated that over 12 million people receive home care from non-family 

members each year. The patients and clients range from newborns to those in their end of 

life. Pediatric home care includes high tech services such as ventilator care to newborns and 
Criminal Background Checks and the EEOC’s Conviction Records Policy 163

much more. Developmentally disabled youths and adults receive extensive skilled and 

personal care services. Persons with physical disabilities also rely on extensive home care to 

remain in the community. The elderly population is the predominant recipient of home care, 

much of it funded by Medicare, Medicaid, the Administration on Aging, state programs, and 

through private payment. Medicare alone covers 3.5 million beneficiaries each year under its 

home health benefit. Medicaid covers many more with nearly $60 billion in spending for 

skilled and personal care services.

Typically, home care patients/clients are confined to their home due to the severity of their 

illness, injury, mental limitations or functional incapacity. Many of the elderly 

patients/clients live alone or with their aged spouse. Home care patients/clients are among the 

most vulnerable citizens in the country, subject to acute and chronic infirmities, dependent 

upon others for their recovery or maintenance of activities of daily living. As such, they are 

at high risk of abuse—physically, emotionally, and financially. In addition, many 

patients/clients use multiple prescription medications thereby creating an opportunity for 

others to acquire drugs otherwise not available to them. Finally, many home care 

patients/clients receive funding for their care from government programs, creating a risk of 

fraud by the provider.

The risks referenced above are heightened by the fact that in many instances the home care 

caregiver is alone with the patient/client. While supervision does occur, it is periodic rather 

than continuous and may not even occur with the caregiver present. 

It is estimated that the total professional and nonprofessional caregivers in home care is 

approximately 2 million persons. The US Department of Labor estimates the nonprofessional 

workers at nearly 1.7 million and growing rapidly. While the actual number of paid 

individual caregivers is unknown, California, for example, uses several hundred thousand in 

a Medicaid program known as “In-Home Supportive Services.” 

The nonprofessional caregivers are personal care assistants, homemaker-home care aides, 

and home health aides. Under Medicare home health and hospice benefits, home health aides 

are credentialed through training, competency testing, and ongoing in-service training. These 

aides are employed by Medicare participating home health agencies and hospices that adhere 

to comprehensive Conditions of Participation. Outside of the Medicare services, the 

nonprofessional staff may be comparably credentialed through state licensure requirements, 

payer standards, or on a voluntary basis. However, not all aides are credentialed. 

Professional staff includes nurses, physical therapists, speech-language pathologists, 

occupational therapists, respiratory therapists, dieticians, medical social workers and others. 

The vast majority of these professional workers are subject to state licensing requirements.

Home care providers range from individuals to small “mom and pop” sized companies to 

large public companies to international franchise operations. Some home care companies are 

affiliated with a health care institution or health system. Others are freestanding. There are 

over 12,000 Medicare participating home health agencies, over 3,000 Medicare hospices, and 

estimated 15-20,000 private pay enterprises across the country. 
164 Speakers’ Statements

While the situational and environmental risks may be high, home care providers have taken 

their responsibilities to protect the patient/client and the payers of the services very seriously. 

Among the valuable tools available to mitigate the risks are criminal background checks on 

existing and prospective staff.

USE OF BACKGROUND CHECKS

State Requirements

According to the National Conference of State Legislatures, all states except Louisiana, 

Montana, Nevada, and North Dakota have laws governing criminal background checks for 

some level of in-home direct care workers. “State Policies on Criminal Background Checks 

for In-Home Direct Care Workers,” National Conference of State Legislatures, prepared for 

AARP Public Policy Institute, December 18, 2008. In California, Kansas, South Dakota, 

Tennessee, and Vermont the background checks are discretionary for some or all of the 

employees listed in the state statute. However, the voluntary nature may be illusory as some 

states, such as California, preclude Medicaid payment those convicted of certain crimes. The 

state requirements vary widely, with many states limiting the background checks to “home 

health agencies,” while others requiring checks for all licensed home care providers and 

services financed through programs such as Medicaid.

Most states prohibit employment automatically if designated criminal offenses are revealed 

by a criminal history. Only a few states allow employers to decide whether a background 

warrants disqualification or do not mention disqualifying crimes in the statute. For example, 

North Carolina lists a number of crimes such as homicides, sex-related offenses, offenses 

against vulnerable individuals, drug-related offenses, and fraud, but gives the home health 

agency complete discretion on whether to disqualify the individual based on these offenses. 

Where disqualification is automatic, the offenses vary from state to state, but generally 

include homicide and other violent crimes, fraud, and drug-related crimes.

The time period for automatic disqualifications varies as well. Some offenses such as 

homicide or criminal sexual assault can lead to a lifetime employment ban. Others have time 

limitations, such as a 15 year ban following completion of sentence or probation in 

Minnesota for fraud against federal health programs.

Many states offer waiver or appeal rights that can give an opportunity to reconsider an 

employee applicant despite the criminal record. NCSL reports that 25 states outline some 

type of waiver or appeal process. In some of these states, a disqualification can be overturned 

upon evidence of successful rehabilitation. Accuracy appeals are also available. 

Finally, some states allow for conditional employment pending the outcome of the criminal 

background check. Conditional employment may be time-limited or subject to direct 

supervision.

NCSL concludes that “[t]he widespread use of mandatory criminal background checks for inhome direct care workers suggests states view the process as an important screening tool for 
Criminal Background Checks and the EEOC’s Conviction Records Policy 165

hiring qualified workers for older people and people with disabilities.” NAHC agrees with 

this view.

Federal Requirements and Activity

While most laws requiring criminal background checks in home care originate at the state 

level, these state laws are given federal effect through Medicare laws that require providers 

of services to comply with all applicable State laws and regulations including any state and 

local licensing requirements. See, e.g. 42 USC 1395x(o)(4); 42 CFR 484.12 (Medicare 

Conditions of Participation for Home Health Agencies).

Specific federal activity involving criminal background checks in home care is growing and 

evidences a strong Congressional and Administration interest in using the checks as a tool to 

protect patients and federal payment programs. Section 307 of the Medicare Prescription 

Drug, Improvement, and Modernization Act (MMA) of 2003 (PL 108-173) created a pilot 

program within the Department of Health and Human Services “to establish a program to 

identify efficient, effective, and economical procedures” for conducting state and federal 

checks on prospective home care employees. Seven states originally participated in the pilot 

program. The program’s success led to a congressionally-authorized nationwide expansion 

under Section 6201 of the recent Patient Protection and Affordable Care Act (ACA). Section 

6201 establishes federal minimum standards on the use of background checks while allowing 

states to establish certain parameters including the addition of disqualifying crimes. Overall, 

the program is a strong indication that national policy favors the use of criminal background 

checks in home care. The program established under MMA and expanded under the ACA 

creates a framework for federal home care programs while allowing states to tailor the 

background check requirements to meet their unique goals and standards.

The original pilot program indicated effectiveness while not triggering wholesale 

disqualifications. The report on the pilot revealed that of the 204,339 background checks, 

158,476 employees were cleared for employment with 269 of those cleared based on 

rehabilitation review and appeals processes. “Evaluation of the Background Check Pilot 

Program—Final Report,” Abt Associates, Inc., August 2008. The pilot disqualified 7,463 

applicants with an additional 38,400 records withdrawn prior to a final fitness determination 

decision. Abt suggests that the withdrawn may include those deterred based on an 

expectation of disqualification or unrelated reasons. 

Any concern about the disparate racial or ethnic impact of using disqualifying criminal 

background checks in home care is likely misplaced. Home care is the fastest growing 

occupation in the US according to the Bureau of Labor Statistics (BLS). Among the areas 

employment projected to grow the most is personal care attendants, home care aides and 

nurses. In many parts of the country there already is a staff shortage. That is not an 

environment for improper or illegal discrimination. Also, the facts currently demonstrate that 

employed home caregivers are 48% white non-Hispanic, 31% African American, 15% 

Hispanic and Latino, and 7% other race/ethnicity.

It is notable that in six of the seven pilot states, the fitness determination was made not by the 

employer but by analysts that worked either for the State health care provider regulatory 
166 Speakers’ Statements

agency or the State central repository. In such a process, the risk of discriminatory rejection 

of employment by the employer is no concern.

Further federal support for the use of criminal backgrounds checks in home care is found in 

the Medicare hospice program. Since 2008, Medicare has required all participating hospices 

to obtain a criminal background check on all hospice employees who have direct patient 

contact or access to patient records, 42 CFR 418.114(d). Subcontractor staff are also subject 

to the same requirement. Under the rule, hospices must obtain the background in accordance 

with state law. In the absence of state law requirements, the hospice must obtain criminal 

background information within 3 months of the date of employment for all states that the 

individual has lived or worked in the past 3 years.

EEOC GUIDANCE

As stated, NAHC strongly supports full compliance with all civil rights law related to 

employment. At the same time, NAHC supports appropriate use of criminal background 

checks in the screening of workers who provide direct patient care in the home and those 

who have access to sensitive health care or identity-related information. 

The recent EEOC guidance is a thoughtful effort to provide direction to employers that must 

comply with civil rights laws along with laws requiring or encouraging prospective employee 

criminal background checks to protect vulnerable consumers and others. However, the 

guidance presents complexities and confusion for most home care businesses and could 

benefit from simplification.

It is always difficult for businesses to comply with state and federal laws that may actually 

require conduct that is inconsistent or in conflict. With home care services, that difficulty is 

readily apparent as most states require criminal background checks that either mandate the 

exclusion of a prospective employee from employment or strongly encourage such while the 

EEOC guidance appears to establish a position that such exclusion is presumptively a 

violation of civil rights laws.

The guidance is useful in distinguishing between acceptable and unacceptable uses of 

criminal background checks in hiring processes and decisions. However, it presents itself in a 

nature and form that renders it useful only for a small segment of the population capable of 

digesting its complex, 52-page legal analysis. 

Most home care businesses are small operations without in-house legal staff or access to the 

resources necessary to consult expert legal counsel on hiring policies and decisions. 

Certainly, it is not feasible for most home care companies to render compliant 

“individualized” hiring determinations involving applicants with criminal backgrounds 

supported by expert legal representation and guidance. The volume of hiring decisions alone 

make such impractical and uneconomical.

The NAHC membership consists of the wide range of home care companies presented by the 

industry at large. In recent weeks, we consulted with various members to determine how they 

have reacted to the new EEOC guidance. While admittedly anecdotal, the information 
Criminal Background Checks and the EEOC’s Conviction Records Policy 167

gathered indicates that the vast majority of smaller companies are unaware of the guidance 

and do not routinely employ legal counsel on hiring policies, practices, or decisions. Those 

companies aware of the guidance expressed confusion triggered by the complexities of the 

guidance, particularly with respect to discretionary employment disqualifications. 

Most home care companies consulted expressed that the hiring decisions are primarily guided 

by state law when employment disqualification is required. They cite the vulnerable 

population that they service and the program integrity responsibilities they have to the 

various third-party payers. This operational approach may be summarized as one where 

doubts about whether to hire someone with a criminal background are resolved by favoring 

disqualification in order to protect patients and payers.

At the same time, the home care companies consulted indicate that they do hire individuals 

with criminal records when not otherwise specifically prohibited from doing so under state 

law. With these, the companies take a variety of factors into account including the nature of 

the offense subject to conviction, post-conviction activities of the person, and the length of 

time since the conviction.

The approaches taken to criminal records may be fully compliant with the guidance. 

However, its denseness and complexity can leave one with too many uncertainties for 

comfort.

RECOMMENDATIONS

NAHC recommends that the Commission take the following steps to help alleviate confusion 

and concern with the EEOC guidance:

1. Encourage the EEOC to collaborate with the Centers for Medicare and Medicaid 

Services and the US Department of Health and Human Services to develop 

coordinated, simple compliance guidance in laypersons’ terms along with a 

communications plan to educate health care providers on their responsibilities relative 

to criminal background checks.

2. Encourage the EEOC to collaborate with federal and state health are regulators to 

develop model standards that achieve joint compliance with laws that are designed to 

protect health care consumers and payers and the laws designed to protect the civil 

rights of employees and job applicants. 

3. Issue guidance that specifies that compliance with state or federal laws requiring 

automatic employment disqualification results in a “safe harbor” compliance with 

civil rights laws.

4. Develop and overall guidance regarding the use of criminal background checks in 

hiring that is in plain English.

NAHC believes that the best solution to concerns raised regarding the EEOC guidance on 

the use of criminal background checks, in health care employee hiring, is to collaborate 
168 Speakers’ Statements

with the regulators of health care entities on the state and federal level. The current 

approach results in silo-based standards by both the EEOC and health regulators. Instead, 

those regulators should jointly seek to achieve a clarity and consistency in their policies 

that will benefit all stakeholders. 

***
Criminal Background Checks and the EEOC’s Conviction Records Policy 169

Nick Fishman 

Nick Fishman

Co-Founder, Chief Marketing Officer and Executive Vice President of

EmployeeScreenIQ

EmployeeScreenIQ Written Testimony for the United States Civil Rights Commission

Hearing on Employers’ Use of Criminal Background Check

Introduction 

Thank you for having me here today. My name is Nick Fishman and I am the co-founder, 

Chief Marketing Officer and Executive Vice President at EmployeeScreenIQ, a company that 

provides employment background checks to employers throughout the country. Today, I’d 

like to share with the Commission my experience and perspective as a professional 

background screener. I will focus my remarks on how we handle criminal background 

checks, and how our clients use them in a responsible manner.

Our business is based on our core belief that background checks are necessary for employers 

to have the information they need to make informed hiring decisions. The cost of a bad hire 

due to a lack of organizational fit or qualifications is substantial enough. But if you add up 

the cost of negligent hiring lawsuits, employee theft, negative employee morale and the 

potential human cost and loss that can occur in the workplace, we believe that employers 

would be negligent in not performing employment background checks.

Employers agree. A recent Society for Human Resource Management survey indicates that 

87%219 of all U.S. businesses perform criminal background checks on prospective employees. 

This number makes sense, considering the high cost of the investment in people who are 

entrusted to take care of customers, manage businesses, oversee financial affairs, and ensure 

the safety of employees. Our clients tell us that their most valuable assets are their 

employees, but if they are not screened properly, they can be their biggest liability. Every 

new hire is a potential risk. Employers simply want to know that they are bringing in the 

right people and putting them into the right positions.

Background Check Reporting and Accuracy

Our company conducts employment background checks for over 3,000 organizations in the 

US and abroad. We work with those who serve vulnerable populations such as schools, 

overnight camps and home-health care agencies, hotels, airlines, and banks, to name a few. 

We provide these clients with a wide range of services—all of which allow them to make 

better informed hiring decisions. Our services include criminal background checks, resume 

verifications services, verification of education and past employment, and professional 

 219 SHRM Survey Findings: “Background Check—The Use of Criminal Background Checks in Hiring 

Decisions” The Society for Human Resource Management (SHRM) July 19, 2012.
170 Speakers’ Statements

license verification. We check references, conduct motor vehicle record checks, perform drug 

testing and other services.

The Fair Credit Reporting Act (FRCA), the federal statute that regulates employment 

background checks, requires that we (as a consumer reporting agency) ensure “maximum 

possible accuracy” in all of our reports—a responsibility that we take very seriously. 

Employers spend a lot of time and money finding, recruiting and interviewing candidates. 

Once the background screening process begins, (typically after a finalist has been selected), 

the last thing an employer wants is to find a reason not to hire someone. It’s a dollars and 

cents issue—they have immediate hiring needs; they don’t want any delays, and they have 

invested time and money in the candidates. Therefore, they demand that we get it right. They 

need accurate information, and they need us to get it right the first time. 

That means that with every criminal background check, we take steps to verify the 

information that we find before it is reported to the employer. We go to the most current, 

accurate source each and every time. It means that we confirm the identifiers on a record 

belong to the subject of the report, and follow standards for acceptable reporting. It also 

means verifying that a record is legally reportable.

As a result of our meticulous process, we stand by the accuracy of the information we report. 

In keeping with the FCRA, in the event that accuracy is questioned by a job candidate, we 

have a very well defined dispute process. Our dispute rate is just 0.15%. And when disputes 

do occur, we handle them quickly; so that in the unlikely event the information needs to be 

modified it can be done without penalizing the candidate or unnecessarily delaying the hire. 

The FCRA allows 30 days to resolve consumer disputes, but EmployeeScreenIQ resolves 

25% of all disputes within 24 hours, 50% within a week and 85% within 14 days. 

Our Clients and the Responsible Use of Criminal Background Checks

We have heard the argument that the use of criminal background checks is creating an 

underclass of unemployable Americans. Based on the feedback and statistics that we pull 

from our marketplace surveys, that is simply not the case. In fact, our EmployeeScreenIQ 

2013 survey of background screening trends220 revealed the majority of employers do not 

eliminate a candidate solely on the basis of a criminal record. 70% of our responders said that 

when they find a criminal record on a job applicant, that person is denied employment less 

than 5% of the time. When asked which is more important, qualifications or lack of a 

criminal record, 73% indicated that qualifications were more important; up from 70% in 

2011.

These results demonstrate the willingness on the part of most employers to look at 

qualifications and consider the needs of the business, weighing the job relatedness before 

eliminating candidates based on criminal history. In our 2011 survey, employers ranked 

qualifications and the job interview far ahead of a criminal background check in terms of 

 220 EmployeeScreenIQ 2013 Survey Report, “Employment Screening Practices and Trends: The Era of 

Heightened Care and Diligence” January 2013.
Criminal Background Checks and the EEOC’s Conviction Records Policy 171

importance in the hiring decision221 (85% ranked qualifications and job interview as most 

important).

We have clients who seek out ex-offenders to include in their workforce. One client, a 

national, publicly traded energy company in the southwest, participates in a re-entry program 

with the state of Texas to hire ex-cons. Those applicants are screened for job-based 

qualifications, and hiring criteria are applied accordingly. 

Lastly, it is important to note that when a criminal record is revealed, the report does not 

include race information, religion, sexual orientation, or other protected class information.

Arrests and infractions are generally are not included or considered by employers. Employers 

review the report, and contemplate if the type of record found would reasonably suggest a 

pattern of behavior or predict future performance. Our clients are looking for reasons to 

include, not exclude.

EEOC Guidance

The EEOC guidelines on criminal records that were introduced in April have caused 

tremendous confusion among our clients. There are three main areas that are causing the 

most confusion in the background screening process. First, the EEOC recommends as a best 

practice that employers abolish the job application question that asks if the person has been 

convicted of a crime. This recommendation is not feasible for many clients who have bona 

fide job qualifications that require exclusions based on certain types of crimes. Clients are 

understandably confused about when they can and should ask about criminal history and 

request a background check. Delaying the question can cause both the employer and the 

candidate to invest heavily in an opportunity or even quit their job only to be disqualified 

later in the process. The best practice really depends on the type of job, and the attempt to 

brush one broad “best practice” is simply not fair or manageable.

Secondly, there is no relief or consideration for employers that have state law conflicts. 

Employers who have traditionally conducted background checks and excluded certain 

applicants based on criminal standards defined by state law are now between a rock and a 

hard place. In some instances, there is no way to abide by the law without setting aside the 

EEOC guidance, and they are asking their background screeners for help in evaluating what 

they can or should not do.

Finally, the EEOC adds a new requirement for employers to conduct an “individualized 

assessment” when a criminal record is found in a criminal background report. The guidance 

does not recommend any particular means of conducting an assessment, and we’re hearing a 

wide and variable range of practices that employers are considering to meet this requirement. 

Some suggest a phone call, others want to request written statements, questionnaires and, or 

in person interviews. Some want us, the background screening company, to perform those 

functions. Until tested in the courts, no one really knows what is sufficient.

 221 EmployeeScreenIQ 2011 Survey of Employers “Trends in Employment Background Screening: Survey 

2011” June, 2011.
172 Speakers’ Statements

To add to the confusion, public statements by EEOC field office attorneys have warned

employers that they had better think twice before conducting a background check. John

Hendrickson, the regional attorney for the EEOC’s Chicago district said, “I would suggest to

(businesses) that they think long and hard about why they think they need to do a criminal

background check.”222 This type of statement can certainly have a chilling effect.

Recommendations

We suggest focusing on programs that offer training to those with criminal records. Identify

programs that help those with convictions get on their feet, whether offering assistance with

drug rehabilitation, finding a safe place to live and, or helping them find gainful employment.

We also suggest looking at some of the laws that have been enacted across the country to

help those with records succeed in the workplace. Illinois has established a certificate of

rehabilitation and offers employers legal protection if they were to hire someone with one of

these certificates. The state of Ohio just passed a law that offers a certificate of employability

that affords the same protection to employers as the Illinois law.

Enacting laws that inhibit an employer’s ability to perform proper due diligence is not the

answer—in fact they can lead to devastating consequences for the company, their employees,

their customers and the public. Our research, while limited, does not support a finding of

widespread discriminatory practices based on the use of criminal background reports. We

have not seen any current evidence or research that supports such a finding, and such

research was notably absent in the recent EEOC guidance. You can’t ask employers to ignore

information that could make them liable or keep them in the dark.

***

222 “EEOC Asks Employers Not to Hold the Criminal Past of Job Applicants Against Them: Give Them a

Second Chance” Human Resources Journal http://www.humanresourcesjournal.com/2012/10/eeoc-asksemployers-not-to-hold-the-criminal-past-of-job-applicants-against-them-give-them-a-second-shot-at-life-itsays/
Criminal Background Checks and the EEOC’s Conviction Records Policy 173

Harry J. Holzer

Statement of Harry J. Holzer

Before United States Commission on Civil Rights

December 7, 2012

Good morning. I would like to make four points today with regards to the Enforcement 

Guidance issued by the Equal Employment Opportunity Commission (EEOC) last April and 

on the issue of criminal records and employment opportunities.

1. The prevalence of arrests and convictions among less-educated American men 

substantially reduces employer willingness to hire them later in life and worsens their 

employment outcomes more generally, in ways that generate clear “disparate 

impacts” on minority (especially black) men.

High rates of incarceration clearly worsen employment outcomes for those with criminal 

records after their release from prison (Western, 2007; Raphael, 2006). Many young men 

enter and then exit prison with very poor basic skills and low levels of education (Travis, 

2003), but their time in prison further reduces their work experience and marketable skills 

(Raphael, op. cit.) and worsens their social networks and psychological outlooks 

(Lerman, 2009).

Even among those with stronger employability, the great reluctance of most employers to 

hire men with criminal records further worsens their employment outcomes (Holzer et al., 

2003; Pager, 2003), particularly in jobs that involve higher levels of skill, customer 

contact, and/or the handling of money. 

Overall, more than 30% of a recent nationally representative sample of youth have been 

arrested at least once by age 23, with presumably much worse numbers among young 

blacks and the less-educated (Brame et al., 2012). And, by age 35, one-third of all young 

black men have become incarcerated at some point, while two-thirds of black male high 

school dropouts have been jailed. 

So very large percentages of less-educated men, especially black men, have now become 

ex-offenders. Indeed, the very high prevalence of ex-offender status plus the large 

negative effects of incarceration on post-release employment appear to be major reasons 

for the continuing deterioration of employment rates among black young men in the 

noninstitutional population in the past few decades (Holzer et al., 2005; Edelman et al., 

2006). This is not because young black men have an innately greater proclivity towards 

criminal activity, but instead because they have been the most disadvantaged by 

economic changes that weakened their opportunities in the regular labor market (Holzer, 

2009), resulting in larger changes in their behavior and norms.
174 Speakers’ Statements

2. The use of criminal background checks by employers can have positive effects on the 

employment of some young minority men and negative effects on others; both the 

value and the limitations of the information so obtained should be considered when 

making policy about their use.

The use of background checks has risen dramatically in the past decade or so, as their 

availability from private vendors on the internet has risen while the costs of using them 

have declined. While they almost certainly reduce employment for black men with 

criminal records, employer background checks seem to raise employment for black males 

overall – presumably, by reducing statistical discrimination against men whom employers 

suspect of such activity but who turn out to have clean records. Background checks can 

thus play a very useful role for some groups of workers as well as for employers.

But there are important limitations to the positive effects of background checks that 

should also be noted. For one thing, there appear to be many errors in these data 

(Bushway et al., 2007). Frequently, the records do not carefully distinguish arrests from 

convictions, even though arrests often do not result in convictions and imprisonment, and 

thus data on arrests should be viewed with greater skepticism. And there are both false 

positives (among apparent offenders) and false negatives (among apparent non-offenders) 

in the data, suggesting that the observed differences in criminal activity between these 

two groups are really not as great as they seem to be.

Furthermore, a number of research studies have shown that the ability of criminal records 

to predict future contacts with police or arrests diminishes greatly during the first five 

years in which a past offender does not commit another crime (Blumstein and Nakamura, 

2009; Kurlychek et al., 2006, 2007). Indeed, arrest rates are very low for young offenders 

who are “clean” for at least 5-7 years and become very close in magnitude to those of 

non-offenders.223

Importantly, these studies all focus on the probability of new contacts with police or 

arrests for previous offenders, rather than the commission of specific new felony 

offenses; in most cases, the studies do not tell us whether or not the new contact/arrest 

results in a conviction and another spell of incarceration, and if so for what type of 

offense. Accordingly, it is hard to ascertain the risks of poor job performance, property 

damage or theft, injury to coworkers or customers, or job turnover associated with any 

such new offense. Indeed, since so many offenders are convicted of non-violent felony 

drug possession or sales in the first place, it is hard to know the extent to which the risks 

 223 In the papers by Kurlychek et al., the arrest probabilities of previous offenders at age 18 who have not 

reoffended by age 25 are only 1-3 percentage points per year by ages 25-26 and even less after that, effectively 

converging with those of nonoffenders (which are close to zero). While the estimated probabilities of rearrest 

for previous offenders in Blumstein and Nakamura never quite converge with those estimated for nonoffenders, 

those convicted only of property crimes at age 18 or 20 and not afterwards have annual probabilities of rearrest 

of .05 or less within 5 years and even less 10-15 years later.
Criminal Background Checks and the EEOC’s Conviction Records Policy 175

of theft or violence against customers or coworkers that employers fear are really wellfounded.224

3. The very high costs of previous criminal histories on employment are borne not only 

by the offenders themselves, but also by their families and children, their 

communities, and the US economy more broadly; accordingly, having some 

successful policy efforts to improve employment outcomes for this population are in 

the nation’s interest.

Low employment after prison release is correlated quite highly with recidivism, and 

many researchers believe the former has a causal effect on the latter, though it is certainly 

not the only cause of reoffending (Sampson and Laub, 1993; Fagan and Freeman, 1999; 

Bushway and Reuter, 2004.).

But the negative effects of low employment post-release and recidivism extend far 

beyond the offender himself. For instance, Berkeley economist Rucker Johnson (2007, 

2009) shows that the children of offenders are much more likely to engage in negative 

behaviors and to ultimately become incarcerated themselves than similar children of nonoffenders, and it is likely that lower employment and/or repeat spells of incarceration 

among parents generate worse outcomes among the children of those incarcerated. 

A lack of employment almost certainly makes it harder for low-income non-custodial 

fathers with a child support order to make their payments on time, thus denying their 

families and children an important source of household income (Mincy and Sorensen, 

1998; Mead, 2011). When they fail to make such payments, the non-custodial fathers go 

into “arrears,” or debts to the child support system, that likely even further reduce their 

future employment activity (because of the very high withholding rates of 50% on 

earnings for those in arrears – Sorensen et al., 2007; Cancian et al, 2011).225

Children and youth growing up in very low-income neighborhoods, where large fractions 

of adult men do not work, are likely to have even worse outcomes in life than those from 

similar families but better neighborhoods (Wilson, 1996; Sampson, 2012). The absence 

of role models for work and labor market contacts and connections for young men in 

these neighborhoods likely further worsens their employment opportunities in the future, 

perhaps becoming another reason why they also turn to crime (Wilson, op. cit; Holzer, 

1987).

 224 Employers tend to fear legal liability for theft or bodily harm done to coworkers or customers by previous 

offenders in a small number of well-known cases. But, aside from the very small numbers of such cases, 

relative to the millions who are incarcerated each year, it is not clear why those convicted of some felonies 

(such as nonviolent felony drug possession or sales) would pose any such risk.

225 Since the money withheld by the state does not even get distributed to families who have been on any kind of 

public assistance in many states, it is essentially a very high tax rate on workers with low earnings, which tends 

to discourage their formal work effort.
176 Speakers’ Statements

Finally, the overall US economy suffers as well when such large fractions of adult men 

fail to find work. The lost earnings of these men represent lost output and productivity for 

the overall economy, and especially for the cities and states in which these young men 

live (Holzer et al., 2007). 

4. The EEOC Guidance should be viewed as one of several potentially effective legal 

and policy efforts to reduce the many barriers to employment among men with 

criminal records and thus to improve their employment outcomes.

Since employer reluctance to hire men with criminal records appears to be a major reason 

for why employment rates of ex-offenders are so low, attempts to limit the “disparate 

impacts” associated with criminal records on those who would otherwise be employable 

should be welcome, as long as they do not impose undue burdens and risks on employers. 

In my opinion, the EEOC guidance does not seek to discourage employers in any way 

from doing background checks on applicants; it simply tries to encourage a more 

judicious use of the information gained through these checks. Furthermore, it does not 

seek to significantly raise the risks employers bear from hiring offenders; it simply tries 

to encourage a more accurate assessment of these risks. 

As US courts have argued for decades, the length of time since an offense was 

committed, the nature of the original offense, and the nature of the job and the tasks it 

requires should clearly be taken into account in assessing the risk of recurrence of any 

offense, and what it implies for job performance; the mere existence of a prior arrest, 

conviction or incarceration spell at some time in the past can sometimes indicate very 

little about the level of such risks. 

Furthermore, a range of individual factors – such as any participation in employment or 

training programs after release, or an ex-offender’s performance on any jobs held in that 

time period, or other indicators of conscientious and responsible behavior – should also 

be taken into account when such information is available (Bushway and Apel, 2012).226

But a range of other policies and programs should also be used to address the 

employment barriers faced by former offenders and thus to enhance their employability. 

These can include efforts by states to review their statutory limits on felony offender 

employment (Rodriguez and Emsellem, 2011), limiting recidivism due to technical parole 

violations (Western, 2007), a range of reentry and/or fatherhood programs, paid 

transitional jobs, and other efforts to improve employment and child support payments by 

offenders and non-custodial fathers (Mead, 2011).

While the evidence on the cost-effectiveness of these efforts remains limited to date 

(Bushway and Reuter, 2004; Tyler and Berk, 2009; Mead, op. cit), the enormous social 

 226 For instance, Bushway and Abel demonstrate that participation in and completion of a job training program 

after release can be viewed as a very reliable signal of desistance from further criminal activity.
Criminal Background Checks and the EEOC’s Conviction Records Policy 177

costs associated with the status quo should motivate us to explore many approaches to 

this problem. And I believe these other approaches should be viewed as complements to 

EEOC efforts to reduce discrimination, rather than substitutes for them.

REFERENCES

Blumstein, Alfred and Kiminori Nakamura. 2009. “Redemption in the Presence of 

Widespread Criminal Background Checks.” Criminology, Vol. 47:2, 327-49.

Brame, Robert et al. 2012. “Cumulative Prevalence of Arrest From Ages 8 to 23 in a

National Sample.” Pediatrics, Vol. 129:1, 21 - .

Bushway, Shawn and Peter Reuter. 2004. “Labor Markets and Crime Risk Factors.” In 

L. Sherman et al. eds. Evidence-Based Crime Prevention. New York: Rutledge Press.

Bushway, Shawn and Robert Apel. 2012. “A Signaling Perspective on EmploymentBased Reentry Programming.” Criminology and Public Policy, Vol.11:1, 21-41.

Cancian, Maria et al. 2011. “Discouraging Disadvantaged Fathers’ Employment: An 

Unintended Consequence of Policies to Support Poor Families.” Institute for Research on 

Poverty Discussion Paper.

Edelman, Peter et al. 2006. Reconnecting Disadvantaged Young Men. Washington 

DC: Urban Institute Press.

Fagan, Jeffrey and Richard Freeman. 1999. “Crime and Work.” Crime and Justice, 

Vol. 25, 225-290.

Holzer, Harry. 2009. “Employment Problems among Young Black Men: Updating 

Moynihan’s Perspective.” Annals of the Academy of Political and Social Science, Vol. 

xx.

Holzer, Harry. 1987. “Informal Job Search and Black Youth Unemployment.” 

American Economic Review, Vol. 77:2, 446-52.

Holzer, Harry; Diane Schanzenbach, Greg Duncan, and Jens Ludwig. 2007. The 

Economic Costs of Poverty: Subsequent Effects of Children Growing Up Poor.

Washington DC: Center for American Progress.

Holzer, Harry; Paul Offner and Elaine Sorensen. 2005. “Declining Employment 

among Young Black Men: The Effects of Incarceration and Child Support.” Journal of 

Policy Analysis and Management.

Holzer, Harry; Steven Raphael and Michael Stoll. 2003. “Employment Barriers 

facing Ex-Offenders.” Reentry Roundtable, the Urban Institute, Washington DC.

Johnson, Rucker. 2009. “Ever-Increasing levels of Incarceration and the 

Consequences for Children.” In S. Raphael and M. Stoll eds. Do Prisons Make Us Safer? 

The Benefits and Costs of the Prison Boom. New York: Russell Sage Foundation.

Johnson, Rucker. 2007. “Intergenerational Risks of Incarceration for Children.” 

Unpublished manuscript, University of California at Berkeley.

Kurlychek, Megan et al. 2006. “Scarlet Letters and Recidivism: Does an Old 

Criminal Record Predict Future Offending?” Criminology and Public Policy. Vol. 5:3, 

483-504.

Kurlychek, Megan et al. 2007. “Enduring Risk? Old Criminal Records and 

Predictions of Future Criminal Involvement.” Crime and Delinquency, Vol. 53:1, 64-83.
178 Speakers’ Statements

Lerman, Amy. 2009. “The People Prisons Make: Effects of Incarceration on Criminal 

Psychology.” In S. Raphael and M. Stoll eds. Do Prisons Make Us Safer? The Benefits 

and Costs of the Prison Boom.” New York: Russell Sage Foundation. 

Mead, Lawrence. 2011. Expanding Work Programs for Poor Men. Washington DC: 

American Enterprise Institute.

Mincy, Ronald and Elaine Sorensen. 1998. “Deadbeats or Turnips in Child Support 

Reform.” Journal of Policy Analysis and Management. Vol. 17, No. 1, 44-51.

Pager, Devah. 2003. “The Mark of a Criminal Record.” American Journal of 

Sociology, Vol. 108:5, 937-75.

Raphael, Steven. 2006. “The Socioeconomic Status of Black Males: The Increasing 

Importance of Incarceration.” In A. Auerback et al. eds. Public Policy and the Income 

Distribution. New York: Russell Sage Foundation.

Rodriguez, Michelle and Maurice Emsellem. 2011. 65 Million Need Not Apply: The 

Case for Reforming Criminal Background Checks for Employment. New York: National 

Employment Law Project.

Sampson, Robert. 2012. The Great American City: Chicago and the Enduring 

Neighborhood Effect. Chicago: University of Chicago Press.

Sampson, Robert and John Laub. 1993. Crime in the Making: Pathways and Turning 

Points through Life. Cambridge MA: Harvard University Press.

Sorensen, Elaine et al. 2007. “Assessing Child Support Arrears in Nine Large States 

and the Nation.” Report for the Department of Health and Human Services.

Travis, Jeremy. 2003. But They All Come Back: Facing the Challenge of Prisoner 

Reentry. Washington DC: Urban Institute Press. 

Tyler, John and Jillian Berk. 2009. “Correctional Programs in the Age of Mass 

Incarceration: What Do We Know About What Works?” In M. Toussaint-Comeau and B. 

Meyer eds. Strategies for Improving Economic Mobility of Workers. Kalamazoo MI: 

W.E. Upjohn Institute for Employment Research. 

Western, Bruce. 2007. Punishment and Inequality in America. New York: Russell 

Sage Foundation. 

Wilson, William J. 1996. When Work Disappears. New York: Alfred Knopf. 

***
Criminal Background Checks and the EEOC’s Conviction Records Policy 179

Richard S. Larson

November 26, 2012

Statement of Richard S. Larson

President, Winning Work Teams, Inc.

This Statement is provided to the U.S. Civil Rights Commission pursuant to the Open

Briefing with respect to the use of criminal histories during the employment process.

My perspective on this important employment issue comes from nearly 30 years in the

Human Resources field first, as a senior level Human Resources executive working with

large companies having more than 750 employees to my more recent experience working as

a Human Resources consultant with smaller companies of between 15 to 300 employees. As

such, my hands on recruitment experience has ranged from large scale job fairs hiring

hundreds of employees during a single day to recruiting senior level executives over the

course of several weeks.

During the course of the past 30 years, employers have encountered a succession of

challenges from the Immigration and Control Act of 1986 (“IRCA”) to The Family and

Medical Leave Act (“FMLA”) to The Americans with Disabilities Act (“ADA”) to The

Americans with Disabilities Amendments Act (“ADAAA”) to the Lilly Ledbetter Fair Pay

Act and other federal and state laws impacting the workplace.

Along with these statutes, we have seen heightened scrutiny of workplace practices under

Title VII and analogous state civil rights statutes. We have also seen the emergence of

negligent hiring and negligent retention concepts. And we have seen the impact of unlawful

workplace retaliation claims across the workplace. In today’s environment many employers

are concerned about becoming a target for an employment claim.

We are now having a conversation regarding the proper use of criminal histories by

companies when making hiring decisions and the various perspectives regarding this critical

employment issue.

Perhaps we can agree that the United States has historically been a land of “second chances.”

From our earliest days when an immigrant could earn passage to the new world through a
180 Speakers’ Statements

Page 2 - Richard S. Larson Statement

period of indentured servitude, to the promise of Emancipation, to the concept of a “fresh 

start” through filing for personal bankruptcy, we have long rooted for the underdog who was 

willing to keep moving forward to improve his or her station in life. 

Indeed, employers are often willing to provide second chances to their employees who make 

mistakes. And they are often open to providing employment opportunity to those who may 

have failed elsewhere.

As a practical matter, a great many felony ex-offenders have a non-violent history such as a 

narcotic violation, felony-related DUI or a property crime conviction. Often an employer will 

hire an ex-offender when the employer is comfortable that the ex-offender poses no 

immediate risk to the company, to co-workers or to third parties and the company has 

established that the candidate is well suited to fill the open position. Criminal histories 

reflecting violence to the person, harm to children and criminal enterprise are more 

problematic.

In the reality of today’s workplace, we must recognize that there are large employers having 

access to a highly qualified legal staff and to HR executives well versed on current 

employment issues and to the resources provided by high quality outside legal counsel. Due 

to such resources, shifts in the employment winds are relatively easy for large companies to 

track and understand. However, for the smaller companies, keeping up with new expectations 

(and risks) may be a very real challenge. 

Whatever the size of the company, the HR function will see itself as the “gatekeeper” to 

ensure high performing human capital is identified to move the business forward. Make safe 

“right fit” hires. Avoid the risks of negligent hire and negligent retention. Manage 

performance and terminate employment when necessary. 

It should be noted that obtaining a credible criminal history can be a challenge. Accuracy is 

paramount and often records are incomplete. Full case disposition is critical to the 

understanding as to whether a candidate is suited for the job at hand to meet ongoing 

business needs. Unfortunately, some employers seek out background information on job 

applicants through a variety of sources, some of which may be unreliable or incomplete. An 

Internet search may not provide the best information. A reputable third party credit reporting 

agency specializing in providing background information to employers is much more likely 

to provide better information as reflected in state and national law enforcement (FBI) data 

bases and is recommended.

Generally speaking, the smaller employer today understands that good HR practices include 

providing equal opportunity during the hiring process. Seeking to avoid a negligent hiring 

situation by use of criminal histories will often be an established practice. However, the 

concept of unlawful adverse impact by utilization of criminal histories may not be 

understood at the smaller company. In fact, for those schooled on the principle to avoid 
Criminal Background Checks and the EEOC’s Conviction Records Policy 181

Page 3 - Richard S. Larson Statement

negligent hiring, the concept of adverse impact may seem counter-intuitive, particularly 

when faced with a failure to hire claim. 

Thus, a component of learning awareness on this issue since the EEOC issued its 

Enforcement Guidance on April 25, 2012 would be helpful so that all companies have a 

shared understanding with respect to this issue. 

Governmental agencies as well as employer associations, business groups and the legal 

community all have a role to provide educational awareness regarding this important 

employment issue. Industry specific guidelines will be helpful. 

For example, the hospitality industry may recommend close scrutiny of candidates having a 

criminal history involving children due to the high numbers of children who visit attractions 

and resorts with their parents. On the other hand, a candidate who has incurred a felony 

violation as the result of a traffic incident may be suitable in a retail position as posing no 

ongoing threat to guest safety when not having a requirement to drive a company vehicle as a 

component of the job description.

Just as it took a length of time to sort out the issues and develop appropriate best practices 

with respect to FMLA and the ADA/ADAAA issues, so must employers be afforded a 

learning curve on this issue as well as it has a direct impact upon the business and the 

employees who are selected to join the team. 

Once the concept of unlawful adverse impact is understood, companies can create a process 

to identify the operative facts to make a reasonable determination as to whether the position 

should be offered to the candidate having a criminal history. Such a process is similar to 

making a determination following a request for reasonable accommodation under the 

ADAAA or whether a request for FMLA should be granted. A disciplined approach must be 

designed to ensure the input of all stakeholders, including the applicant. 

The HR team and other key stake holders must be appropriately trained with respect to the 

components of the decision-making process. Then, the facts must be weighed and the 

necessary business decision reached. Many companies engage in such a process at this time. 

Again, such a process is not unlike the decision-making process when an applicant or 

employee seeks a reasonable accommodation due to disability.

The actual time to make an individualized case-by-case evaluation should not be overly

burdensome upon the employer. Often this issue presents itself at 5% or less of contingent 

job offers and once the data is gathered, decisions can be make rather quickly.

Companies already trained to make decisions regarding requests for reasonable 

accommodation under the ADAAA will quickly grasp the steps in the recommended analysis 
182 Speakers’ Statements

Page 4 - Richard S. Larson Statement

process. Those familiar with processing FLMA leave requests will have a similar analytical 

framework.

Compare this issue which occurs on a low percentage basis with the requirements of the 

Immigration and Control Act of 1986 which requires the employer to act upon 100% of new 

hires to ensure valid work authorization in the United States. This mandate requires 

document production, document review, proper filling out of the appropriate government 

form, tracking of certain documents having expiration dates and proper document retention. 

Non-compliance can result in enforcement sanctions. Many companies believed it necessary 

to hire additional staff to administer the new record keeping function required by IRCA. It is 

highly doubtful that a company will find that it needs to hire additional staff on an ongoing 

basis to review criminal histories for disparate impact issues. Once the issue is clearly 

understood and a well designed policy is in place, this process can be added to the scope of 

responsibilities of the HR manager who currently reviews background reports.

We must recognize that even the best good faith hiring efforts may result in close calls. We 

must also recognize that for every applicant hired, there may be many others who are 

disappointed.

A disciplined good faith approach to gathering all the relevant factors and then engaging in 

an individualized case-by-case analysis regarding the job at hand, the nature of the criminal 

offense and how it may relate to the open position under consideration, the amount of time 

that has passed since the time of conviction, intervening activities along with other relevant 

factors including the necessary needs of the business, will afford employers with a reasonable 

defense if challenged as to a particular hiring decision. 

Thank you.

Most sincerely,

Richard S. Larson,

President 

***
Criminal Background Checks and the EEOC’s Conviction Records Policy 183

Donald R. Livingston

Statement of Donald R. Livingston1

Before the Meeting of U.S. Commission on Civil Rights on December 7, 2012:

“Assessing the Impact of Criminal Background Checks and the Equal Employment 

Opportunity Commission’s Conviction Records Policy on the Employment of Black and 

Hispanic Workers”

Thank you for inviting me to express my views on the U.S. Equal Employment 

Opportunity Commission’s policies on the use of criminal conviction records in the hiring 

process.

Since at least 1972, the EEOC has published its positions on the Title VII 

implications of using criminal history information as a factor in employee selection 

decisions. The EEOC has required that policies be applied consistently to prevent disparate 

treatment, but take into account particularized circumstances to be job-related. 

On February 28, 2007, the EEOC announced E-RACE, an initiative to attack race 

discrimination. Among other things, E-RACE targeted employers’ use of arrest and 

conviction records because the practice significantly disadvantages certain minority 

applicants and employees. Two weeks later, in El v. Southeastern Pennsylvania 

Transportation Authority (“SEPTA”), the Third Circuit Court of Appeals rejected the 

EEOC’s guidance on convictions, finding it not based on thorough research or persuasive 

reasoning.

SEPTA reinvigorated debate over the meaning of business necessity, engaged the 

EEOC in deliberation over the appropriate means to assess the job-relatedness of criminal 

conviction policies, and cast uncertainty over how these policies are to be evaluated under 

Title VII. The EEOC answered in April 2012 with its Enforcement Guidance on the 

Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of 

the Civil Rights Act of 1964.2 My statement discusses the legal force of the EEOC’s 

enforcement guidance, the history of the EEOC’s interpretation of applicable legal standards, 

and significant aspects of the EEOC’s guidance.

 1 Partner, Akin, Gump, Strauss, Hauer & Feld, Washington, D.C.; general counsel of U.S. Equal Employment 

Opportunity Commission, 1990-93. This statement discusses the EEOC’s policies on an employer’s use of 

criminal convictions when making hiring decisions. It does not address the broader topic of criminal history 

records, such as records of arrests.

2 Although the policy discusses the disparate impact of arrest and conviction records on Blacks and Hispanics, 

the EEOC has sued to attack the application of criminal conviction policies to males, including white males, on 

the basis that males engage in more criminality than females. Under the EEOC’s approach to Title VII, men 

with criminal convictions are entitled to a Title VII remedy when women with the same criminal history are not. 

See EEOC v. Freeman, Case No. 8:09-CV-02573-RWT, S.D. Md (pending).
184 Speakers’ Statements

I. The Legal Effect of the EEOC’s 2012 Enforcement Guidance on the 

Consideration of Arrest and Conviction Records

The most frequent way the EEOC makes and publicizes its interpretation of statutes is 

by issuing interpretative guidance and policy statements, without using notice-and-comment or 

other formal rulemaking procedures under the Administrative Procedures Act. The EEOC’s 

right to issue statements that advise the public of the agency’s construction of the statutes it 

administers is considered to be within the EEOC’s inherent power.3 This includes issuing 

enforcement guidance documents, such as the 2012 Enforcement Guidance on the 

Consideration of Arrest and Conviction Records, which was approved by the EEOC’s 

commissioners. 

The EEOC’s 2012 policy guidance is not an EEOC regulation. In fact, the EEOC has no 

authority to issue a substantive regulation under Title VII.4 The guidance is not binding, even 

on the EEOC which is free to taken an inconsistent position during investigations or in 

litigation.

As a general matter, the amount of deference to be given the EEOC’s interpretations 

of EEOC-enforced statutes is controlled by the Supreme Court’s decision in Chevron U.S.A. 

Inc. v. Natural Resources Defense Council, Inc.5 Under Chevron, a court should give effect 

to a federal agency’s regulation that reasonably interprets an ambiguous statute (“Chevron

deference”).6 But, whether the Supreme Court will give Chevron deference to any particular 

EEOC interpretation is difficult to predict. The Court has exercised an undefined discretion 

to accept or reject agency analysis.7 The Court’s opinions on EEOC interpretations are 

inconsistent, often unexplained, and the Court has avoided any attempt to reconcile them.

The Court simply defers to EEOC when it determines the EEOC’s interpretation is 

clearly right,8 or, it declines to defer when it determines the EEOC is clearly wrong.9

 3

See BENJAMIN W. MINTZ & NANCY G. MILLER, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES: A

GUIDE TO FEDERAL AGENCY RULEMAKING 63 (2d ed. 1991) (“Agencies may issue interpretative rules without a 

delegation of rulemaking authority”); Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 810, 33 FEP Cases 

181 (4th Cir. 1983) (recognizing EEOC’s inherent power to issue interpretative rules). Notably, the EEOC does 

not state that it intends its 2012 enforcement guidance to be used by the courts. The guidance states that the 

Commission intends that it be used by “employers considering the use of criminal records in their selection and 

retention processes; by individuals who suspect that they have been denied jobs or promotions, or have been 

discharged because of their criminal records; and by EEOC staff who are investigating discrimination charges 

involving the use of criminal records in employment decisions.”

In the 

“between cases,” the Court has signaled that it does not need the EEOC’s help to interpret 

4

See General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 13 FEP Cases 1657 (1976) (“Congress . . . did not confer 

upon the EEOC authority to promulgate rules or regulations pursuant to [Title VII]”). 5

467 U.S. 837 (1984). 6

Id. at 842. 7

Melissa Hart, Skepticism and Expertise: The Supreme Court and the EEOC, 74 Fordham L. Rev. 1937, 1938 

(2006). 8

As in Edelman v. Lynchburg College, 535 U.S. 106, 114 (2002), where an EEOC regulation permitted an 

otherwise timely charge to be signed after the time for filing has expired. 

9

As in General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004), which refused to accept an EEOC 

interpretation that the ADEA protects younger workers against discrimination in favor of older workers.
Criminal Background Checks and the EEOC’s Conviction Records Policy 185

anti-discrimination laws. In most EEOC cases, the Court follows the standard discussed in

United States v. Mead, without expressly saying so:10 the EEOC’s Title VII guidance and policy

statements are followed only to the extent the Court finds them persuasive, based on

“thoroughness, logic, and expertness, fit with prior interpretations, and any other sources of

weight.”11

As a general matter, the influence of the 2012 policy guidance on judicial interpretations

would seem to be minimal because of the indefiniteness of the EEOC’s legal conclusions. In

guidance in 1985, the EEOC expressed what an employer “must show” to prove its disparate

impact defense under Title VII. “Must show” is an expression of a definitive interpretation. It is

an exclusive command that would preclude any other interpretation. A contrary judicial opinion

of what an employer “must show” would disturb it.12 Consequently, there would seem to be

some justification for a court to take the EEOC’s opinion into account. The EEOC had made a

decision about the requirements of a statutory defense based on its interpretation of an imprecise

provision of Title VII, a statute that Congress empowered the EEOC to enforce.

However, the 2012 guidance does not express this same degree of confidence about

what Title VII requires. Instead, of using language of command, the 2012 guidance merely lists

“circumstances in which the Commission believes employers will consistently meet the ‘job

related and consistent with business necessity’ defense.” In other words, the 2012 guidance

makes a prediction. It “believes” (i.e. predicts) that the EEOC, and possibly the courts, will

“consistently” affirm employer conviction policies in certain circumstances, which are

identified in the enforcement guidance. A decision by a court that is contrary to this

prediction, or that approves different “circumstances” that meet the employer’s defense,

would not “disturb” the EEOC’s guidance. So, it is hard to envision a role for the guidance in

a courts’ interpretation of Title VII’s requirements for an employer’s defense to a disparate

impact claim. We shall see what the courts do.

II. History of EEOC’s Position on the Nexus between Criminal Convictions

and Title VII

The EEOC’s 2012 policy on criminal records states that it is a violation of Title VII to

subject similarly situated persons of different protected groups to different standards when

investigating or evaluating criminal backgrounds. This position is not controversial.

Employers must maintain consistency in the application of their policies to guard against any

suggestion of arbitrariness and, more importantly, to avoid disparate treatment.

10533 U.S. 218 (2001); see, e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111, 88 FEP Cases

1601 (2002) (EEOC interpretations of the substantive provisions of Title VII are only entitled to consideration,

and thus should be followed only to the extent that they are persuasive). 11Mead, 533 U.S. at 228, 235. 12 See United States v. Shimer, 376 U.S. 374, 382-3 (1961) (“. . . If this choice represents a reasonable

accommodation of conflicting policies that were committed to the agency's care by the statute, we should not

disturb it unless it appears from the statute or its legislative history that the accommodation is not one that

Congress would have sanctioned.”
186 Speakers’ Statements

What is controversial is the EEOC’s interpretation of Title VII that would require

employers to replace objective hiring standards, adopted to avoid this disparate treatment,

with subjective assessments. Under the EEOC’s reading of Title VII, in most cases

employers must make fine distinctions about persons with criminal convictions based on

subjective judgments about trustworthiness and improvements in character based on an

evaluation of the individual’s character references, rehabilitation efforts, employment history,

and age.

In 1971, in Griggs v. Duke Power Co.,13 the Supreme Court recognized the theory of

disparate impact discrimination under Title VII. Under what seems to be the most relevant

Griggs formulation for subsequent EEOC policies on criminal conviction records, once the

plaintiff has shown that a selection procedure has an adverse impact on the hiring of

members of a particular race, or other characteristic protected by Title VII, the burden is on

the employer to show that the given requirement has “a manifest relationship to the

employment in question.”14 The Court explained that “[u]nder [Title VII], practices,

procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be

maintained if they operate to “freeze the status quo of prior discriminatory employment

practices.”15

In 1972, EEOC policy permitted a Respondent to appeal a field office’s finding of

discrimination to the Commission. The Commission then issued written opinions that it

published. One of these opinions concerned a charging party who was fired under a policy of

automatic discharge for conviction of a serious crime. The employer stated, and the EEOC

accepted, that the policy was adopted solely to protect the company’s image and maintain a

safe working environment for other employees. Upon finding that disparate impact existed

“since ... a substantially disproportionate percentage of persons convicted of ‘serious crimes’

are minority group persons,” the Commission found that the policy was not justified by

business necessity because it was “clearly arbitrary.” It was “unnecessary to treat all ‘serious’

convictions as being equally predictive of future employability, without reference to the

13 401 U.S. 424, 433 (1971) 14 The Court’s varied and imprecise express of the job-related test has sparked considerable disagreement over

the meaning of Griggs. In addition to stating that job-relatedness looks to whether there is a manifest

relationship between the selection procedure and the job, the court spoke in terms of a demonstration that the

selection procedure bears a relationship to successful job performance. This has resulted in some inexact line

drawing between scored procedures, which courts typically require be justified by a formal study of their

relationship to job performance, and unscored procedures, such as licensing requirements, that are sometimes

upheld without formal validation. 15 401 U.S. at 430. In 1973, the Supreme Court explained the justification for Griggs in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973): “Griggs was rightly concerned that childhood deficiencies in the

education and background of minority citizens, resulting from forces beyond their control, not be allowed to

work a cumulative and invidious burden on such citizens for the remainder of their lives.” It explained that

criminal conduct does not fall within this justification. And, the Court recognized that an employer has a jobrelated interest in having trustworthy employees (“The broad, overriding interest, shared by employer,

employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral

employment and personnel decisions”). However, the Court questioned the job-relatedness of a “sweeping

disqualification of all those with any past record of unlawful behavior.” (Emphasis added).
Criminal Background Checks and the EEOC’s Conviction Records Policy 187

specific facts of the case, such as [the] job-relatedness of the conviction and the employee’s

immediate past employment history.”16

In 1975, the Eighth Circuit Court of Appeals decided Green v. Missouri Pacific

Railroad17 (EEOC participating as amicus curiae), which considered the legality of a blanket

employment bar for anyone with a prior criminal offense. The court rejected the company’s

business necessity defense with the statement that it could not “conceive of any business

necessity that would automatically place every individual convicted of any offense, except a

minor traffic offense, in the permanent ranks of the unemployed.” In a post-remand appeal,

the court affirmed an injunction that allowed the use of criminal convictions as a factor in a

selection decision, as long as the employer took into account (1) the nature and gravity of the

offense or offenses, (2) the time passed since the conviction or completion of sentence, and

(3) the nature of the job for which the applicant applied. These factors were soon adopted by

the EEOC, and remain the core of the EEOC’s guidance on the use of conviction records.

For years immediately following Green, the EEOC took the unexplained position that

a Title VII violation would exist even if the criminal conviction were job related unless the

employer examined several factors to determine whether the conviction affected the

individual’s ability to perform the job in a manner consistent with the safe and efficient

operation of the employer’s business. These include two of the Green factors (the number

and circumstances of each conviction, and the length of time between the conviction and the

employment decision), but added two factors -- consideration of the individual’s employment

history, and the individual’s efforts at rehabilitation.18

In 1978, the federal agencies, including EEOC, adopted the Uniform Guidelines on

Employee Selection Procedures (UGESP) to provide the government’s position on the proper

use of selection procedures that have a disparate impact under Title VII.19 UGESP contains

detailed procedures for the formal validation of selection rules and practices, particularly

tests. The EEOC has never applied UGESP’s validation procedures to criminal conviction

policies. Indeed, the authors of UGESP have recognized that there may be unscored

procedures for which validation is not required.20 The EEOC consistently has taken the

position that the use of criminal conviction records in the hiring process is one of these

procedures.

16 Commission Decision No. 72-1497, CCH EEOC Decisions (1973) ¶ 6352. 17 523 F.2d 1290 (8th Cir. 1975). 18 See, e.g. Commission Decision No. 77-23, CCH EEOC Decisions (1983) ¶ 6710. 19 29 C.F.R. §1607. 20 UGESP’s § 1607.6 recognizes that there may be circumstances involving unscored procedures “in which a

user cannot or need not utilize the validation techniques contemplated by [the] guidelines.” The guideline states:

When an informal or unscored selection procedure which has an adverse impact is utilized, the user

should eliminate the adverse impact, or modify the procedure to one which is formal, scored or

quantified measure or combination of measures and then validate the procedure in accordance with

these guidelines, or otherwise justify continued use of the procedure in accordance with Federal law.

(Emphasis added).
188 Speakers’ Statements

In November 1985, the EEOC published its EEOC Policy Statement on the Issue of

Conviction Records under Title VI which set forth the EEOC’s position on the method for

establishing business necessity for criminal conviction rules. The policy statement was based

on Green v. Missouri Pacific Railroad’s common sense approach to business necessity. No

formal validation was required.

The 1985 policy statement expressed the EEOC’s “underlying position that an

employer’s policy or practice of excluding individuals from employment on the basis of their

conviction records has an adverse impact on Blacks and Hispanics” because general

population statistics show that members of these groups are convicted of crimes at a rate

higher than their representation in the population. According, the EEOC held that a policy of

limiting employment opportunities because of criminal convictions is unlawful

discrimination against Blacks and Hispanics unless the policy justified by business necessity.

The EEOC stated that an employer establishes business necessity for refusing to hire

(or for firing) an individual based on a criminal conviction by showing that it considered the

three factors from Green when it made its decision: “(1) the nature and gravity of the offense

or offenses, (2) the time that has passed since the conviction and/or completion of the

sentence, and (3) the nature of the job held or sought.” Significantly, the EEOC repudiated its

previous Commission decisions that required consideration of the individual’s employment

history and efforts at rehabilitation. According to EEOC, these Commission decisions were

“no longer precedent for establishing business necessity,” and “are overruled.”

In 1987, the EEOC issued a policy statement on how to use statistics to evaluate the

disparate impact of a criminal conviction policy. The statement, EEOC Policy on the Use of

Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from

Employment, reiterated that the EEOC believed that population statistics demonstrate the

adverse impact of criminal conviction policies. However, the EEOC stated that an

investigative finding of no cause should be made when the employer shows that there is no

disparate impact from more narrowly drawn conviction statistics or from the consideration by

the employer of criminal convictions in its own hiring process.

The EEOC’s guidance was divided into two situations: one where the employer’s

policy is not crime-specific, and the second where the policy is crime specific. Where the

policy is not crime specific, the EEOC stated “it is open to the respondent/employer to

present more narrow local, regional, or applicant flow data (where not limited artificially by

discouragement of applicants who are former criminal offenders), showing that the policy

probably will not have an adverse impact on its applicant pool and/or in fact does not have an

adverse impact on the pool. Where the employer’s policy is crime specific, such as dealing

with a subcategory of crimes like “theft,” “robbery,” or “drug-related crimes,” the EEOC

believed that national or regional conviction statistics for crimes as a whole will “only show

a probability of adverse impact” for Blacks or Hispanics, while a more narrow data may

show no adverse impact. The employer could avoid adverse impact liability if it showed no

adverse impact for a specific crime targeted in its crime-specific policy (“the employer may

present national, regional, or local data on conviction rates for the particular crime which is

targeted in its crime-specific convictions policy”). In addition, the employer could use its
Criminal Background Checks and the EEOC’s Conviction Records Policy 189

applicant flow data to demonstrate that its conviction policy had not resulted in the exclusion

from employment of a disproportionately high number of Blacks or Hispanics.

In 1990, the EEOC issued its Policy Guidance on the Consideration of Arrest

Records in Employment Decisions under Title VII. This guidance states several positions

relevant to criminal conviction policies that are left out or implicitly contradicted in the

EEOC’s current 2012 guidance document. These are: “[c]onviction records constitute

reliable evidence that a person engaged in the conduct alleged since the criminal justice

system requires the highest degree of proof for a conviction;” “trust” is the relevant

relationship between a previous crime and the job; and business necessity need not be

established if the applicant “engaged in conduct which is particularly egregious.”

In 2006, the EEOC added a section on race and color discrimination to its

Compliance Manual.

21 The section reaffirmed both the 1985 policy on criminal convictions

and the EEOC’s position that a demonstration of job-relatedness is not required if the person

committed a “particularly egregious” crime.22

The 2007, the federal Third Circuit Court of Appeals in El v. Southeastern

Pennsylvania Transportation Authority explicitly rejected the EEOC’s reliance on the Green

factors.23

In 2010, the Supreme Court decided National Aero. and Space Admin. v. Nelson, 562

U.S. ___, 131 S.Ct. 746 (2011), which held that background investigations on contract

workers at NASA did not violation any constitutional right to informational privacy. In the

course of its opinion, the Court noted that “the government has an interest in conducting

basic employment background checks,” and found it manifest that “[r]easonable

investigations of applicants and employees aid the Government in ensuring the security of its

facilities and in employing a competent, reliable workforce.”

21 Section 15, Race and Color Discrimination, EEOC Compliance Manual, 4/19/06;

http://www.eeoc.gov/policy/docs/race-color.html

22 The Section states in part:

In addition to avoiding disparate treatment in rejecting persons based on conviction or

arrest records, upon a showing of disparate impact, employers also must be able to justify such

criteria as job related and consistent with business necessity. This means that, with respect to

conviction records, the employer must show that it considered the following three factors: (1) the

nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or

completion of the sentence; and (3) the nature of the job held or sought. A blanket exclusion of

persons convicted of any crime thus would not be job-related and consistent with business

necessity. Instead, the above factors must be applied to each circumstance. Generally, employers

will be able to justify their decision when the conduct that was the basis of the conviction is

related to the position, or if the conduct was particularly egregious. 23 479 F.3d 232 (3d Cir. 2007). The facts of the case were as follows. Under a contract between SEPTA and

King Limousine Services, King provided specialized bus service for persons with disabilities. King agrees in its

contract with SEPTA that it would not employ drivers for these paratransit buses who had a felony or

misdemeanor conviction for any crime of moral turpitude or violence against any person, or any conviction

within the last seven years for any other felony or misdemeanor among specific offenses. El was denied a

position because he had been convicted of second degree homicide for his role in a gang-related incident that

occurred about 40 years earlier when El was fifteen years old. He served 3 1⁄2 -years in prison.
190 Speakers’ Statements

III. The EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest

and Conviction Records

In April 2012, the EEOC issued its Enforcement Guidance on the Consideration of

Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights

Act of 1964. The following is summary of some of the important aspects of the guidance.

1. The Essence of the 2012 Guidance

The EEOC’s 2012 guidance deals with this statement:

With respect to criminal records, there is Title VII disparate impact liability where

the evidence shows that a covered employer’s criminal record screening policy or

practice disproportionately screens out a Title VII-protected group and the

employer does not demonstrate that the policy or practice is job related for the

positions in question and consistent with business necessity.24

2. The Use of Statistics

Under the 2012 guidance “an employer may present regional or local data showing

that African American and/or Hispanic men are not arrested or convicted at

disproportionately higher rates in the employer’s particular geographic area. An employer

also may use its own applicant data to demonstrate that its policy or practice did not cause a

disparate impact. An employer’s evidence of a racially balanced workforce will not be

enough to disprove disparate impact.” The guidance does not deal with the difference

between a policy that is crime specific and one that is not crime specific, which was an

important aspect of the 1987 EEOC Policy on the Use of Statistics in Charges Involving the

Exclusion of Individuals with Conviction Records from Employment.

Another important omission from the 2012 guidance is that it does not discuss the

relevance of the Civil Rights Act of 1991 amendments to Title VII to proof of a statistical

disparate impact from criminal conviction rules. As previously stated, EEOC’s 1987 policy

acknowledged that employer policies that target specific crimes can be evaluated for

disparate impact on a crime by crime basis. Under the Civil Rights Act of 1991 and preenactment case law, the plaintiff must isolate and identify the specific employment practice

that is allegedly responsible for any observed statistical disparity.25

24 This paper uses the terms “job related” and “business necessary” interchangeably. In Griggs, the Supreme

Court referred to both terms without explaining a difference. After Griggs, the Court seemed to use the terms

interchangeably. In Contreras v. City of Los Angeles, 656 F.2d 1267 (1981), the Ninth Circuit Court of Appeals

stated that they are interchangeable (“We treated ‘job related’ and ‘business necessity’ as interchangeable terms,

neither of which required proof that the challenged policy was absolutely necessary for operation of the

business”).

 The 2012 guidance

neither considers whether different crimes should be evaluated separately for disparate

25 42 U.S.C. § 2000e-2(k)(1)(A)(i) and (B); Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988)

(plurality opinion); Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 657 (1989) (“a plaintiff must

demonstrate that it is the application of a specific or particular employment practice that has created the

disparate impact under attack”).
Criminal Background Checks and the EEOC’s Conviction Records Policy 191

impact, nor whether the employer’s use of the Green factors, as interpreted by the employer,

should be evaluated separately for disparate impact. As for example, whether theft crimes

should be examined separately from sex crimes, and whether a durational cut off, such as

limiting consideration of convictions only to convictions within the past seven years, should

be separately evaluated for disparate impact.

3. Articulation of the job-related and consistent with business necessity test

The guidance states that the job-related and consistent with business necessity test

should be constituted in accordance with Griggs and other Supreme Court decisions that

predate Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).26 The EEOC

summarizes its understanding of the standard from these decisions:

The Griggs Court stated that the employer’s burden was to show that the policy or

practice is one that “bear[s] a demonstrable relationship to successful performance

of the jobs for which it was used” and “measures the person for the job and not the

person in the abstract.” In both Albemarle and Dothard, the Court emphasized the

factual nature of the business necessity inquiry. The Court further stated in

Dothard that the terms of the exclusionary policy must “be shown to be necessary

to safe and efficient job performance.”

The guidance then substantially adopts the formation of business necessity in Green

v. Missouri Pacific Railroad, but without explaining how the rationale of Green fits the

EEOC’s interpretation of the Griggs’ formulation.

According to the EEOC, it believes that there are two circumstances where

employers will consistently meet the “job related and consistent with business necessity”

defense:

• The employer validates the criminal conduct screen for the position in

question per the Uniform Guidelines on Employee Selection Procedures (Uniform

Guidelines) standards (if data about criminal conduct as related to subsequent work

performance is available and such validation is possible); or

• The employer develops a targeted screen considering at least the nature

of the crime, the time elapsed, and the nature of the job (the three Green factors), and

then provides an opportunity for an individualized assessment for people excluded by

the screen to determine whether the policy as applied is job related and consistent with

business necessity.

The individualized assessment would consist of notice to the individual that he has

been screened out because of a criminal conviction; an opportunity for the individual to

demonstrate that the exclusion should not be applied due to his particular circumstances; and

consideration by the employer as to whether the additional information provided by the

26 See note 24.
192 Speakers’ Statements

individual warrants an exception to the exclusion and shows that the policy as applied is not

job related and consistent with business necessity.

According to the EEOC, the individualized assessment would not always be

necessary, but EEOC does not state the considerations that would be applicable to an

evaluation of the necessity of the individualized assessment. The EEOC does state that to

rely solely on the Green factors, “a screen would need to be narrowly tailored to identify

criminal conduct with a demonstrably tight nexus to the position in question.”

“Demonstrably tight nexus” is not defined. However, when the screen does meet this test, the

assessment would include consideration of the following:

• Evidence that the individual performed the same type of work, post conviction, with

the same or a different employer, with no known incidents of criminal conduct;

• The length and consistency of employment history before and after the offense or

conduct;

• Rehabilitation efforts, e.g., education/training;

• Employment or character references and any other information regarding fitness for

the particular position; and

• Whether the individual is bonded under a federal, state, or local bonding program.

A significant weakness of the EEOC’s guidance is that it does not explain the linkage

between the Green standards and the Griggs’ tests. Moreover, the EEOC’s guidance has two

other striking omissions. First, it does not address the relevance of the statement in Griggs

that the employer’s burden is to show that the given requirement has “a manifest relationship

to the employment in question.”27 And, second, it does not address the plurality opinion in

Watson v. Fort Worth Bank28

27 The Court’s varied and imprecise express of the job-related test has sparked considerable disagreement over

the meaning of Griggs. In addition to stating that job-relatedness looks to whether there is a manifest

relationship between the selection procedure and the job, the court spoke in terms of a demonstration that the

selection procedure bears a relationship to successful job performance. This has resulted in some imprecise line

drawing between scored procedures, which courts typically require be justified by a formal study of their

relationship to job performance, and un-scored procedures, such as licensing requirements, that are sometimes

upheld without formal validation. Here is what the Court said in Griggs:

 that the manifest relationship test would be satisfied when it is

obvious that significant goals are significantly satisfied by a selection rule. These

explications by the Supreme Court would seem to provide a reasoned and reliable

justification for the Green test. After all, a recent, serious criminal offensive that is plainly

relevant to the nature of a specific job, such as a felony stealing conviction and a bank clerk

job, is manifestly related to the employment in question as shown by the Green test.

On the record before us, neither the high school completion requirement nor the general intelligence

test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was

used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship

to job-performance ability. Rather, a vice president of the Company testified, the requirements were

instituted on the Company's judgment that they generally would improve the overall quality of the

work force.

401 U.S. 431 (1971). 28 487 U.S. 977 (1988).
Criminal Background Checks and the EEOC’s Conviction Records Policy 193

Applying Watson, no further proof would seem required. But, should uncertainly about

“manifest” job relatedness remains, evaluation of other factors, such as employment history

and rehabilitation might, in combination with the Green factors, show the manifest

relationship. However, this line of reasoning to link Green to Griggs is not open to the EEOC

because EEOC defines Griggs as requiring a showing that a criminal conviction “bear[s] a

demonstrable relationship to successful” job performance. The EEOC fails to explain how

the Green or any other factors accomplish this.

4. Validation

The EEOC’s guidance accepts that formal validation of conviction policies is not

required, and questions whether validation is even possibly.

5. Less Discriminatory Alternatives

The guidance states that “[i]f an employer successfully demonstrates that its policy or

practice is job related for the position in question and consistent with business necessity, a

Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory

‘alternative employment practice’ that serves the employer’s legitimate goals as effectively

as the challenged practice but that the employer refused to adopt” The EEOC provides no

example of a less discriminatory alternative.

IV. Federal Government’s Policies

Private employers consider criminal convictions during the hiring process for the

same reason the federal government considers them. With respect to its own applicants, for

example, the EEOC believes that a history or pattern of criminal activity creates doubt about

a person’s judgment, honesty, reliability and trustworthiness, and that a willingness to abide

by rules is an essential qualification for a position of public trust. See EEOC Personnel

Suitability and Security Program Handbook, p. 9. The EEOC cites to no authority for these

conclusions, likely because the EEOC considers them obvious, or “manifest” to employment

with the EEOC.

***
194 Speakers’ Statements

Glenn E. Martin

PRESENTATION OF GLENN E. MARTIN

THE FORTUNE SOCIETY

U.S. Commission on Civil Rights

December 7, 2012

Presented by

Glenn E. Martin

Vice President for Public Affairs

The Fortune Society

Director,

The David Rothenberg Center for Public Policy

2976 Northern Blvd, Long Island City, NY 11101

www.fortunesociety.org

347.510.3607

gmartin@fortunesociety.org

Good Morning. My name is Glenn E. Martin, and I serve as the Vice President of Public

Affairs and the Director of the David Rothenberg Center for Public Policy (DRCPP) at The

Fortune Society (Fortune). For over four decades, Fortune has been a powerful criminal

justice advocate, as well as an alternative-to-incarceration and reentry service provider.

Fortune’s mission is to support successful re-entry from prison and promote alternatives to

incarceration, thus strengthening the fabric of our communities. We do this by believing in

the power of individuals to change, building lives through service programs shaped by the

needs and experience of our clients, and changing minds to promote the creation of a fair,

humane and truly rehabilitative correctional system. Thank you, distinguished

Commissioners of the U.S. Commission on Civil Rights for the opportunity to present at

today’s Briefing.

As you know, there is an increasingly clear relationship between incarceration, collateral

consequences, and the abrogation of civil rights in the United States. While professing high

civil standards, the United States exhibits one of the most dilapidating criminal justice

systems in the world. Topping the world charts for incarceration statistics while maintaining

a clearly dysfunctional rehabilitation system, our nation races toward a civil rights

catastrophe. Over the years, race- and class-biased policy making has successfully been

hidden in the midst of a culture of low tolerance and fear of crime. The policies and biases

that fuel the Prison Industrial Complex have had a disproportionate impact on colored and

impoverished Americans, including the criminal record-based discrimination that affects
Criminal Background Checks and the EEOC’s Conviction Records Policy 195

millions of U.S. citizens each year. Before America holds itself out to the rest of the world as 

a pillar of democracy and freedom, we must first deal with the racism proxy we have created 

with our burgeoning criminal justice system and the invisible punishment that follows 

conviction and confinement.

Each year, millions of Americans with criminal records face discrimination, stigma and a 

maze of policies and regulations that keep them from accessing the necessities for rebuilding 

their lives and becoming functioning members of society. Legal restrictions, licensing 

requirements, occupational bars, inadvertent and deliberate discrimination practices, and the 

cultural stigma associated with having a criminal record prevent many people—especially 

those from economically distressed communities of color—from accessing jobs in the lowwage labor market. When these individuals inevitably fail to reintegrate and are 

reincarcerated, 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 civil rights are 

diminished.

Fortune has evolved in response to the overwhelming needs of formerly incarcerated men 

and women to include a broad array of programs addressing the myriad needs of the 

population of people with criminal records. Today, Fortune offers to 3000 clients annually a 

holistic and integrated "one-stop" model of service provision that, depending upon individual 

need, includes: workforce development, education, housing, outpatient substance abuse 

treatment, outpatient mental health treatment, family services, HIV/AIDS services, followup, and lifetime aftercare services. In addition, while Fortune has always engaged in 

advocacy and community education, in order to increase our impact and capacity, in 2007 we 

launched DRCPP, a department which focuses primarily on community education and 

federal and state-level public policy advocacy. Part of DRCPP’s mission is to increase 

employment opportunities for qualified jobseekers with criminal records by improving 

employment policies and practices and changing public opinion.

Reflective of the self-help foundation of Fortune, over 70% of the agency’s staff have 

graduated from our programs or have experienced issues similar to those of our clients, 

including incarceration, homelessness, and substance abuse. The cultural competency that 

such staff brings to Fortune’s work informs our advocacy agenda, as well as program design 

and helps retain clients in our comprehensive array of services. Similar to over half of our 

staff, I am formerly incarcerated myself, having served 6 years in a NYS prison from 1994 to 

2000. I am also the son of a retired police officer and the brother of a US federal correction 

officer. After earning a college degree inside and exiting prison in 2000, I spent months 

searching for employment in the NYC entry level labor market. Interviewing with over 40 

employers within a two month period, I faced a tremendous amount of discrimination, before 

I began working at the Legal Action Center in New York City. I eventually was hired as the 

Co-Director of the National H.I.R.E. Network (HIRE), a national project dedicated to 

eliminating barriers to employment for jobseekers with criminal records. I invite questions 

from the Commissioners about my personal journey after exiting prison.

Since being released from prison, I have authored and advanced legislation in a number of 

jurisdictions to remove barriers to employment, housing, education and voting for formerly 
196 Speakers’ Statements

incarcerated people. Knowing both sides of the justice system, I am extremely well versed in 

the issues. I have appeared as a criminal justice policy expert on several national news 

outlets, including CNN, MSNBC and CSPAN. I’ve also served as an expert on local 

television and radio, contributing on the controversial issue of Stop and Frisk, as well as a 

number of other topics, including policing, alternatives to incarceration and reentry. In 

addition to television appearances, I host a NYC- based cable television show, Both Sides of 

the Bars, where I engage criminal justice stakeholders and the local community in 

conversations about criminal justice reform.

Germaine to today’s discussion, I recently collaborated with my colleagues to advocate for 

the recently adopted US Equal Employment Opportunity Commission Title 7 Guidance on 

Jobseekers with Arrests and Conviction records. To highlight the importance of the reissued 

guidance, today I plan to focus my presentation on a 2004/5 study by Princeton Professor 

Devah Pager, Race at Work: Discrimination in Low Wage Labor Markets. I served as the 

Project Manager for the study, which was housed at the NYC Commission on Human Rights, 

which afforded me the opportunity to not only help execute the research, but also to be privy 

to the many insightful and sometimes disturbing anecdotal experiences of our testers.

Unfortunately, decades of civil rights progress have led some researchers and policymakers 

to doubt that discrimination remains an important cause of economic inequality. To study 

present-day discrimination, Principle Investigators Devah Pager and Bruce Western 

collaboratively conducted a field experiment in the low-wage labor market of New York 

City, recruiting white, black, and Latino job applicants who were matched on demographic 

characteristics and interpersonal skills. These applicants were given equivalent résumés, 

carefully manufactured by the research team, and sent to apply in tandem for hundreds of 

randomly assigned entry-level jobs in NYC.

The results show that black applicants were half as likely as equally qualified whites to 

receive a callback or job offer. In fact, black and Latino applicants with clean 

backgrounds fared no better than white applicants just released from prison.

Moreover, the positive outcomes for black applicants, when presenting evidence of a 

criminal record, were reduced by 57%. Additional qualitative evidence from the 

applicants’ experiences further illustrates the multiple points at which employment 

trajectories can be deflected by various forms of racial bias. These results point to the subtle 

yet systematic forms of discrimination that continue to shape employment opportunities for 

low-wage workers.

Exacerbating the problem, the criminal background check industry has grown exponentially 

and remains relatively under regulated. Particularly in the wake of 9/11, the ready availability 

of inexpensive commercial background checks has made them a more popular screening tool, 

even for relatively small and medium sized employers. In one 2010 survey by the Society of 

Human Resource Management, more than 90 percent of employers reported using criminal 

background checks for their hiring decisions. At the same time that the background check 

industry has expanded, the share of the U.S. population with criminal records has soared to 

over one in four adults.
Criminal Background Checks and the EEOC’s Conviction Records Policy 197

Pager and Western recognized that without observing discrimination directly, it is difficult to 

make causal statements about the nature or magnitude of the barriers to employment for 

disadvantaged groups. Using an experimental audit methodology for the study, we sent teams 

of male testers with equivalent resumes to apply for entry level jobs in New York City. 

Testers were matched on the basis of age and appearance; after selection, they participated in 

extensive training to ensure consistency in their interactions with employers. The testers used 

fictitious matched resumes reflecting equal levels of education and work experience. In 

several of the teams, the resumes also reflected evidence of an 18-month term of 

incarceration. Testers within teams rotated which member of the team served in the criminal 

record condition to control for unobserved differences within tester pairs that could affect 

hiring outcomes. Because testers are given equivalent resumes, and criminal conviction 

status is randomly assigned, the unobserved heterogeneity that typically plagues studies of 

workers is minimized in this experimental setting.

The audit study began in February 2004, employing a dozen different black, white, and 

Latino testers, in 14 experimental conditions. By the completion of our data collection, we 

audited over 1350 employers. After each visit to an employer, testers complete a detailed 

debriefing form to record their interactions. Voicemail boxes also record whether employers 

called back testers to make job offers or schedule second-round interviews, with additional 

voicemail boxes set up to record calls to references. This study represents the largest and 

most complex audit experiment ever conducted in a single field site.

Add to the above-mentioned findings of this study the sobering fact that 1 in 3 black male 

babies born in the United States today will have criminal justice involvement by the age of 

29 and we find ourselves confronted with the collateral consequences of this nation’s 

addiction to incarceration. Essentially, whether deliberate or inadvertent, criminal record 

based discrimination serves as a surrogate for race-based discrimination. The sheer scale of 

arrest, prosecution and incarceration of people of color has resulted in the phenomenon of 

mass incarceration. Based on current rates of first incarceration, an estimated 32% of black 

males will enter State or Federal prison during their lifetime, compared to 17% of Hispanic 

males and 5.9% of white males. Black males ages 20-30 have significantly higher rates of 

incarceration than other racial groups. An estimated 1 in 3 black men ages 16-34 has a 

criminal record; 12% of black men in that age group are incarcerated; roughly twice that 

number is on probation or parole. According to the Justice Policy Institute here in DC, so 

pervasive is the criminal justice system in the lives of black men that more of them have 

done prison time than have earned college degrees.

The collateral consequences of criminal conviction in the era of mass incarceration, 

particularly in employment, must be understood in the context of civil rights. A new divide 

has been created all across America. Prior to Brown v. Bd of Ed, race was the dominant 

instrument of social control. Today, the criminal justice system and its collateral 

consequences are the means by which racial discrimination and exclusion are perpetuated 

and justified, albeit through the back door. Although the collateral consequences of 

conviction are increasingly identified and understood, they are usually framed as arguments 

for the rehabilitation of formerly incarcerated people, rather than analyzed as the repackaging 

of institutional racism with structural impact on entire communities. Unfortunately, relatively 
198 Speakers’ Statements

little attention has been given to the ways that federal and state laws barring employment are

an affront to equal opportunity and affirmative action, underlying the importance of today’s

Briefing and the need for subsequent focus on this important civil rights issue.

Thank you for the opportunity to present at today’s Briefing and I look forward to questions.

2

New York City Audit Study

 Employment Audit: Matched pairs of individuals apply to real job openings

• 6 teams

• 13 testers

• 1470 employers

• 3500 individual visits

 experimental variables: race, ethnicity, criminal background, educational

attainment

5
Criminal Background Checks and the EEOC’s Conviction Records Policy 199

3

Experience: Prison Messhall vs Fast Food 

Restaurant

4

Table 1. Occupational Distribution

Customer Service 26 2

736

26

36

39

51

68

85

161

242

N

Courier 2

Other 50

Telemarketing 3

Driver 3

Laborer 4

Busboy 5

Clerical 6

Retail sales 11

Waitstaff 16

Job Title Percent
200 Speakers’ Statements

5

 

White Black

C N C N

> 200 audits > 200 audits

NYC Audit Design

C = criminal record, N = no criminal record

6



W B L

>250 audits

Racial/Ethnic Queues
Criminal Background Checks and the EEOC’s Conviction Records Policy 201

7



W,C B,N L,N

> 250 audits

Racial and Criminal Stigma

C = criminal record, N = no criminal record

8

 

White Black

C,A N C,A N

> 200 audits > 200 audits

The Role of Educational Credentials

C = criminal record, N = no criminal record , A = Associates Degree
202 Speakers’ Statements

9

Call-backs or Job Offers 

by Race/Ethnicity (Figure 1)

22

17

11

0

5

10

15

20

25

white latino black

10

Call-backs or Job Offers 

by Race and Criminal Record, (Figure 2)

12 12

10

0

5

10

15

20

25

white felon latino black
Criminal Background Checks and the EEOC’s Conviction Records Policy 203

11

The Effect of a Criminal Record for 

Black and White Job Applicants, (Figure 3)

7

14

17

21

0

5

10

15

20

25

30

Black White

Positive Respo

Criminal Record (HS)

No Record
204 Speakers’ Statements

Todd McCracken

Testimony of

Todd McCracken

President

Before the

U.S. Commission on Civil Rights

Regarding

Criminal Background Screening

December 7, 2012
Criminal Background Checks and the EEOC’s Conviction Records Policy 205

My name is Todd McCracken. I am President of the National Small Business Association 

(NSBA). We are pleased to provide our perspective on criminal background screening in 

general and the recent initiatives in this area by the Equal Employment Opportunity 

Commission (EEOC) in particular. We appreciate your interest in our views.

NSBA was founded in 1937 to advocate for the interests of small businesses in the U.S. It is 

the oldest small business organization in the U.S. The NSBA represents more than 65,000 

small businesses throughout the country in virtually all industries and of widely varying 

sizes.

The Missions of the EEOC and the U.S. Commission on Civil Rights are Important

The EEOC and the Commission have important missions. The EEOC enforces Title VII of 

the Civil Rights Act of 1964 which prohibits employment discrimination on the basis of race, 

color, religion, sex, or national origin; the Age Discrimination in Employment Act of 1967 

which prohibits employment discrimination against individuals 40 years of age and older; the 

Equal Pay Act of 1963 which prohibits discrimination on the basis of sex regarding 

compensation, section 501 of the Rehabilitation Act of 1973 which prohibits employment 

discrimination against federal employees and applicants with disabilities; the Americans with 

Disabilities Act of 1990 which prohibits employment discrimination on the basis of 

disability; and the Genetic Information Non-Discrimination Act of 2008 which prohibits 

employment discrimination based on genetic information.

The Commission’s mandate is broader than the EEOC’s and it examines civil rights issues in 

all walks of life, not only in employment. NSBA welcomes strong protection of the civil 

rights and liberties of all Americans and supports the mission of both agencies.

Background Screening Enhances the Safety of Employees and Customers of Small Businesses

It is an unfortunate fact of life that not everyone is law abiding. It is also a fact of life that not 

everyone should be employed in certain types of jobs. We do not want rapists entering 

people’s homes. We do not want child molesters working in day care centers. And we do not 

want embezzlers handling large sums of cash.

Employers want to provide a safe place for their employees to work and to do their best to 

prevent workplace crime. They want to do their best to ensure that the employees that they 

send to customers’ homes as technicians, repair people or sales people do not inflict harm on 

their customers. They need to take steps to prevent theft, fraud and embezzlement. 

Criminal background screening is an important tool – very nearly the only tool – that 

employers have to protect their customers, their employees and themselves from criminal 

behavior. Very, very few employers are using criminal background screening for illegitimate, 

discriminatory purposes. And there is little to no evidence that employers are doing so.

Small Businesses Need to Know and Government Has the Obligation to Explain the Rules
206 Speakers’ Statements

That said, small businesses are willing to comply with reasonable rules designed to ensure 

that criminal background screening is not having a disproportionate impact on minorities 

provided that those rules do not endanger their employees or customers, do not substantially 

increase their risk of being victims of property crimes or do not increase their risk of being 

found liable for the tort of negligent hiring.

Government, however, has an obligation to articulate rules that are comprehensible and can 

actually be implemented. It is fundamentally unfair and, in practice, counterproductive for 

the rules to be so opaque that nobody can understand them. It leads to a situation where 

enforceable is starkly arbitrary and the rules, since they cannot be understood, are effectively 

ignored.

As I will discuss in detail later, the EEOC guidance is not guidance at all. It provides no 

meaningful rules about how to proceed. It is really just a threat that the EEOC may proceed 

against employers if, in hindsight, it decides it wants to do so.

Small Businesses are Often Caught Between Competing Government Priorities

Small businesses are caught between competing government priorities and perspectives 

among different federal agencies, the courts and the state and federal governments. The 

recent EEOC guidance, for example, explicitly stated that the fact that a small business was 

complying with a state legal requirement to conduct a criminal background check or to bar a 

felon from a particular position would not prevent an EEOC enforcement action. With 

respect, it is ridiculous that a small business is forced to choose between two conflicting 

government requirements. If the EEOC has a problem with a state statute, it should challenge 

the statute, not launch an enforcement action against a small business who complied with 

state law. Unlike the federal government, small businesses have limited resources and 

defending such a lawsuit will damage the financial health of the business.

Similarly, state and federal courts will allow potentially devastating tort lawsuits against 

businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet 

the EEOC is threatening to launch lawsuits if they do not hire those same felons.

Small businesses really want to know what the rules are so they can comply with those rules 

and get on with running their businesses. They want the state and federal governments, 

including the courts, the legislative branch and the executive branch to set forth consistent 

and comprehensible rules. That does not seem like it is asking for too much. The rules 

applying to small businesses should not be that they are at substantial legal risk no matter 

what they do. 

The EEOC Should Focus on Areas Where Discrimination is an Important Problem

The EEOC should focus its enforcement efforts where unlawful discrimination is an 

important problem. A corollary of that proposition is that it should not expend its resources in 

areas where it is not an important problem. It should be particularly careful about focusing 

resources in areas that are not a demonstrated problem and where there are strong 
Criminal Background Checks and the EEOC’s Conviction Records Policy 207

countervailing policy reasons for employers to engage in the activities that result in the 

alleged disparate impact.

One such area is criminal background screening.

NSBA has conducted a review of the legal and economics literature on these issues. We have 

discussed this with our members. We have found no evidence that criminal background 

screening is a significant civil rights problem.

On the other hand preventing workplace violence, protecting customers and preventing 

property crime is a continuing and serious problem. Moreover, in the absence of criminal 

background screening, our members are subject to substantial risk of being successfully sued 

for the tort of negligent hiring.

The EEOC Needs to Seriously Rethink the Complexity of Its Guidance

Neither the small business community nor the EEOC countenances discrimination. We, like 

this body and the EEOC, oppose bigotry. But the issues that I am discussing today do not 

involve attempted bigotry. Virtually no small businesses are conducting background checks 

for the purposes of excluding minorities. They are trying to hire qualified employees. They 

are trying to prevent their employees, their customers and, in the case of family-owned 

businesses, their own families, from becoming victims of crime. They are trying to avoid 

liability for crimes committed by employees. And they are trying to limit theft, fraud, 

embezzlement and other property crimes.

The vast majority of small firms are also trying to comply with the law and with EEOC 

guidance. In the current situation, they are unable to do so. 

I can assure you that virtually no small business owner is going to be able to read, absorb and 

apply the 55 page, 167 footnote “Enforcement Guidance on the Consideration of Arrest and 

Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 

1964” issued by the EEOC on April 25, 2012. More importantly, we have had many 

discussions with sophisticated attorneys who grapple with these issues for a living, including 

those that work for large law firms advising large corporations. They do not know how to 

advise their clients either. If they are at a loss, then small firms and their generalist attorneys 

will fare no better.

In the real world, small firms and their advisors are not going to be able to understand what 

the EEOC regards as permissible with respect to the use of criminal background checks. The 

reason is fairly straight forward. The EEOC has not clearly stated what it expects from the 

small business community. All the EEOC has done is indicate that it expects small firms to 

conduct a complex individualized assessment weighing numerous factors regarding the use 

of conviction records in each hiring decision. How that is to be done in practice is anybody’s 

guess.
208 Speakers’ Statements

Presumably, the goal of the EEOC is to prevent discrimination. To do so, it must enunciate a

coherent, intelligible policy that businesses, large and small, can actually understand and

implement. The EEOC needs to do better.

At the very least, the EEOC needs to give a large number of actual examples of what it

regards as lawful and unlawful. The EEOC, for example, has not even had the courage to

state that a 20 year old conviction for marijuana possession would not be a legitimate reason

to fail to hire a laborer or conversely that it is legitimate to not hire someone just released

from prison for child molestation as a day care provider. And they need to get a lot more

specific than that for these rules to have any practical effect.

The rules that business owners have to grapple with now are so opaque and complex that

they will, in practice, have to be ignored. The clear and quite understandable concerns about

tort liability and worker, customer and family safety will take precedence over amorphous

and ill-defined EEOC guidance. In short, the EEOC guidance will not achieve its objective.

NSBA would be happy to work with the Commission and the EEOC to develop a new and

better policy that meets our mutual objectives. So far, however, the EEOC has sought very

little input from employers.

Workplace Violence is a Significant Problem

We do not believe that criminal background checks are being misused to any significant

degree for an unlawful discriminatory purpose.

Workplace violence, on the other hand, is a significant problem. Workplace theft and

embezzlement are also major problems. Both can be reduced through proper background

screening. According to the Bureau of Justice Statistics, approximately 572,000 nonfatal

violent crimes (rape, sexual assault, robbery, and aggravated and simple assault) occurred

against persons age 16 or older while they were at work in 2009.1

 Workplace violence

accounted for 15% of nonfatal violent crime against persons age 16 or older. In short,

workplace violence remains a very serious problem even though it has declined over the past

15 years.

A Westlaw search of the law reviews regarding negligent hiring indicate that the trial bar is

quite busy filing negligent hiring lawsuits. Businesses have to take that risk into account

when making hiring decisions. The EEOC needs to consider the tort law in its guidance and,

based on its discussion in the guidance, does not appear to have done so. It is not right that

complying with EEOC guidance (such as it is) can lead to substantial and potentially

devastating tort liability for a business that does so.

1

 Workplace Violence, 1993-2009 National Crime Victimization Survey and the Census of Fatal Occupational

Injuries, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, March, 2011.

http://bjs.ojp.usdoj.gov/content/pub/pdf/wv09.pdf
Criminal Background Checks and the EEOC’s Conviction Records Policy 209

It is not in an employer’s interest to fail to hire an otherwise qualified applicant because they 

smoked some marijuana 20 years earlier and got caught. It is not in their interest to fail to 

hire someone that perhaps got in an altercation years ago and has otherwise had no problems 

with the law and a good employment record. It does not take a major enforcement effort to 

achieve these results.

The true issue is whether minority applicants are being unfairly affected by criminal 

background checks. In other words, are minority applicants that should be hired not being 

hired (because their criminal background is minor or not relevant). There is no evidence that 

this is the case. Certainly, there is no evidence that this is a major problem. This should give 

the EEOC or this body some pause about prioritizing this area.

Conclusion

We urge the Commission to not prioritize enforcement against firms with educational 

attainment requirements or that conduct criminal background checks unless there is a 

substantial, factual basis to believe that they have an unlawful purpose.

We also strongly urge the Commission to clarify its guidance with respect to criminal 

background checks so that the Commission’s expectations are made clear and so businesses 

can effectively meet those expectations.

***
210 Criminal Background Checks and the EEOC’s Conviction Records Policy

Richard T. Mellor

Richard T. Mellor, Vice President,

Loss Prevention

November 26, 2012

On behalf of the National Retail Federation (NRF), I want to thank the U.S.

Commission on Civil Rights for holding this briefing on the April 2012 Equal Opportunity

Commission’s (EEOC) new Enforcement Guidance on the Consideration of Arrest and

Conviction Records in Employment Decisions. In the retail industry, background checks are

widely utilized and provide a necessary safety net as retailers seek to protect their employees,

customers, and businesses. NRF appreciates being able to share our thoughts on this matter

with the Commission.

As the world’s largest retail trade association and the voice of retail worldwide,

NRF’s global membership includes retailers of all sizes, formats and distribution channels as

well as chain restaurants and industry partners from the United States and more than 45

countries abroad. In the U.S., NRF represents an industry that includes more than 3.6 million

establishments and which directly and indirectly accounts for 42 million jobs – one in four

U.S. jobs. The total U.S. GDP impact of retail is $2.5 trillion annually, and retail is a daily

barometer of the health of the nation’s economy.

My name is Richard Mellor and I serve as Vice President of Loss Prevention for

NRF. I am here to represent the retailers we serve. My responsibilities at the NRF include the

communication of pertinent information to the Retail Loss Prevention community,

facilitating educational conferences, engaging law enforcement to meet and build alliances in

preventing retail crime and advocating for appropriate legislation to better protect the assets

of retailers.

Prior to my position at the NRF, I served as a senior loss prevention executive for

more than 25 years at a number of retailers, most recently over a decade with a nationwide

jewelry chain. As part of my responsibilities, I directed the company’s employment screening

process. This included testing and background investigations.

The executive responsibility of conducting business in a professional and law abiding

manner is paramount when protecting the company brand and reputation. Over the past

decade the use of background checks has been steadily rising as retailers shoulder the

liability of protecting the ever growing amount of personal data pertaining to customers,

employees, and company assets. More important than ever before is the prevention of

litigation and legal expense. Unnecessary expenses that stem from carelessness, and
Criminal Background Checks and the EEOC’s Conviction Records Policy 211

specifically employment related matters, can have a significant impact on a company’s 

financial stability.

Employers are extraordinarily careful to manage their employment process, 

preventing even the appearance of discrimination. With the evolution of social networking, 

the protection of the retailer’s brand and reputation is carefully monitored and has become a 

top priority. Social consciousness is part of every retailer’s business strategy. Employment 

practices and policies play an important role in creating a brand identity that encourages 

customers to want to shop and work for that company. Retailers therefore place a high 

priority on demonstrating fairness, credibility, and serving the communities in which they do 

business. As a result, hiring within the communities is important to perpetuating a healthy 

business environment. There is a fine line that retailers must walk between social 

responsibility and the obligation to protect customers, especially children, to ensure the 

safety and security of employees, and at the same time to prevent needless losses to the 

company bottom line. 

NRF strongly believes that hiring practices should be fair and equitable for both 

potential and existing employees. This is especially true during such a challenging economic 

time. At the same time, a background check is an important resource for employers who seek 

to provide a safe and stable work environment. It is an important tool in making sure that we 

fulfill our obligation to employees and customers. When removing the handcuffs from the 

criminals and placing them on the retailers instead, the retailers have great difficulty fulfilling 

their responsibility.

Retailers have both a legal requirement and moral responsibility to ensure a safe 

workforce and secure workplace. Background screenings are an essential aspect of the hiring 

process for businesses and provide employers a better sense of the individuals they are 

putting into their workforce, representing their company and interacting with their customers.

Inserting someone with a criminal conviction for theft or fraud into an organization 

that deals with large amounts of cash, credit card and checking account information is 

extremely risky; and if the person commits a crime, there is never a reasonable recovery of 

assets lost. A retailer who makes the decision to hire a criminal who compromises customer 

privacy has no protection under the EEOC guidelines to fall back upon. They will suffer the 

consequences, not the criminal they hired.

The retailer who hires a delivery driver who has a criminal record for violence and 

that person hurts an employee or customer will again suffer the consequences and liability for 

the injuries and suffering that result from the crime. If a child is abused or hurt by a known 

sex offender the damage to the child and the retailer can be so severe that it can put a 

company out of business. Statistics show this criminal behavior is often repeated and the 

predictability is too high to take the risks of employing such criminals.

The matter of discussing criminal history cannot be left to a chance opportunity, 

hopefully addressed at a later date and by someone not specialized in handling these difficult 

conversations. Criminals are skillful in the art of deception and can easily manipulate the 
212 Speakers’ Statements

conversation, causing bad employment decisions. For those seeking to turn over a new leaf, 

these conversations are better addressed by HR professionals before the offer of employment, 

not after someone is hired by a local, often young and inexperienced, manager of a store. 

Store personnel are trained to be sales managers and not crime intervention specialists. These 

often intimidating conversations, if not handled properly can result in discrimination actions 

brought by and under the EEOC Enforcement Guidance. Again, the potential for harm to the 

company is immeasurable.

With a workforce of 42 million employees, retailers have worked diligently to 

provide opportunities and second chances for individuals committed to rehabilitation. There 

is always room for improvement but the recent EEOC guidance recommending that 

employers remove the question concerning criminal convictions puts retailers and their 

customers at increased and unnecessary risk.

When crimes do occur, the investigators, prosecutors and judges always ask the 

questions: how did this person get access to the information; the restricted area; the 

merchandise or even access to the child. Criminals demonstrate tremendous creativity when 

an opportunity is presented to commit another offense. What is even more perplexing is they 

become harder to catch and more difficult to prosecute given their knowledge of the legal 

process and investigative techniques. 

NRF believes that the criminal background question needs to remain on the 

employment application. This vital information is every bit as relevant as an applicant’s 

education, previous employment experience, and any formal training. We believe the 

potential employer has the right and responsibility to know who they are putting into their 

workplace to represent their company. Removing a first line of defense, specifically the 

criminal background history question, on an employment application, leaves retailers, 

shoppers and the entire business community at risk. If an applicant identifies they have a 

prior conviction, many factors are taken into account while their application is being 

considered. These factors include age, date of the offense, seriousness and nature of the 

violation, as well as rehabilitation. Of course, the relevance of the conviction and open 

position are considered; but, as is the norm in retailing, employees are regularly asked to 

perform duties not included in the job description. Additionally, how does an employer 

effectively manage the private information of a criminal history and yet protect the 

workplace from risk. 

In July 2011 and again in 2012, NRF researched the use and scope of criminal 

background screening in the retail industry. The survey collected information from 96 

companies, ranging from restaurants to department stores to specialty retailers and grocery 

stores. The survey found that 97% of retailers utilize background screening as part of their 

applicant hiring process and 87% use criminal record checks. The positions most commonly 

screened using a criminal background history include Loss Prevention/Security (97%), 

Senior Executive (95%), Store Manager (95%), Assistant Store Manager (94%), and 

Distribution Center Employees (89%). Other positions screened include Store Associates, 

Corporate Employees and third party delivery and service contractors.
Criminal Background Checks and the EEOC’s Conviction Records Policy 213

Transparent criminal history provides an effective way of protecting employees and 

customers within the bounds of the law. This responsibility is not just one of morality, but 

also a legal requirement in many states. The Guidance released by the EEOC is complicated 

by the various state laws that all have different requirements in how to handle background 

checks. This can lead to confusion for employers who have facilities in more than one state. 

As employers seek to follow these various laws, they also have a responsibility to 

demonstrate that due diligence has taken place in their hiring practices in order to protect 

themselves against liability should something happen in their facilities.

In the retail industry, there are positions that cover a spectrum of responsibilities. Just 

a few examples include home delivery and repair workers, salespeople on the floor, buyers of 

the products that are sold, accountants, attorneys, human resource professionals, and security 

personnel. Many of these employees have responsibilities that involve handling cash, checks 

and credit cards of customers and vendors. Employees who perform accounting services have 

access to confidential company and customer financial information. Employees working in 

human resources have access to a myriad of personal information about fellow employees. 

Loss Prevention professionals investigate theft issues, work with homeland security and 

manage the safety and security of customers, employees and assets.

Retail employers big and small promise the delivery of goods and services. They hire 

personnel that drive on public roads and routinely enter customers’ homes. Delivery drivers 

are entrusted with company vehicles and often handle thousands of dollars’ worth of goods 

for delivery. In the case of prepared food delivery, drivers are also likely to handle cash on a 

regular basis. These employees are entrusted with not only the company’s money and 

products, but by customers who hope such individuals will not harm them or steal their 

property or private information.

Having illustrated to you why the retail industry feels that background checks are an 

important part of the hiring process, NRF wants to highlight some specific concerns as to the 

Guidance itself. While there are a number of concerns that NRF has with the Guidance, there 

are a few items that are of most interest to retail.

The process of drafting and implementing the Guidance took place without any public 

review of any actual text. While the EEOC did hold some public meetings where they heard 

from a select group of predetermined stakeholders, all of this was done without being able to 

comment on an actual document. Releasing, passing, and implementation all took place in 

one morning. As a result, no comments were accepted on actual text, and there was 

absolutely no phase-in time for employers to adjust to the new Guidance.

The document puts employers in a difficult place when trying to comply with state 

and local laws that have been passed. An employer who seeks to be in compliance with state 

laws has no assurances they the company will not be charged by the EEOC of violating Title 

VII. It can put companies in a situation of choosing to follow the state/local law and possibly 

be the subject of an EEOC investigation or follow the Guidance and be in violation of 

specific states/localities.
214 Speakers’ Statements

The Guidance seems to make an assumption that the use of background checks is the 

biggest hurdle for ex-offenders seeking employment. While NRF believes strongly in second 

chances and providing an opportunity for people to prove themselves, the problems which 

ex-offenders face extend far beyond background checks. To try and address a complex 

problem by just limiting employer resources does nothing to help with some underlying 

problems that many ex-offenders face such as lack of skills, substance abuse, and limited 

education.

The Guidance “recommends” that employers not ask about convictions on job 

applications. Many retailers still use this question on job applications, though many are 

considering changing their policy in light of the EEOC’s actions. NRF would argue that this 

question is not a way to automatically rule out an applicant. Instead, this is a tool used to find 

out important information about a candidate that often leads to an upfront discussion about 

prior acts. It is better for potential employees as well as the employers to know this 

information up front. The question can also provide an indication of a potential employee’s 

honesty and ability to acknowledge prior bad acts.

NRF believes that the Guidance imposes new burdens on responsible employers. The 

“suggestion” that individual assessments occur in every situation to avoid an EEOC 

investigation is an onerous, impractical, time-consuming, and expensive undertaking. This is 

especially the case in retail with its fluctuation in hiring. Consider, for example, how large a 

burden this would be to those retailers who are now “staffing up” for the holiday season.

Such assessments would greatly slow down the hiring process and divert resources during the 

busiest time of the year.

In our view, the new Guidance makes it more of a challenge for retailers to use 

background checks. Risks need to be weighed if one forgoes background checks all together. 

For example, if a company decides not to do background checks there is:

• The increased risk to the safety and well being of customers and employees;

• Security breaches to information;

• The potential exposure to negligent hiring/retention claims;

• The potential for increased discrimination due to decisions made based on the 

incarceration rate in the United States rather than the individual;

• Possible exposure to negligence claims;

• Increased risk of workplace violence;

• Potential harm to the business if an employee engages in criminal activity on the job;

• Damage to the brand;

• Economic loss due to theft;

Should a retailer continue to conduct background checks, the new Guidance has made 

this more burdensome and costly. It also invites the possibility of the EEOC examining 

policies that NRF would say are unclear and open to interpretation. This in turn could lead to 

investigations and legal battles that take time and money for both the government as well as 

the business.
Criminal Background Checks and the EEOC’s Conviction Records Policy 215

The retail industry wants to keep our workplaces safe, from both internal and external

factors which could cause harm. Criminal background checks are an important tool, and the

updated Guidance puts retailers in a precarious position. The vast majority of employers are

creating workplace policies in good faith and in a fair manner that balance with the real needs

of the business.

NRF asks that the Commission closely examine the impact of the new EEOC

Enforcement Guidance on the Consideration of Arrest and Conviction Records in

Employment Decisions will have on all employers. It is our view that earlier interpretations

of the guidelines were working fairly and this overly burdensome Guidance will add risk,

increase expense, cause confusion, and legal challenges for many retailers.

Thank you for your consideration of our views as the U.S. Commission on Civil

Rights evaluates this new Guidance. NRF would be happy to answer questions you may have

or provide more insight from the retail perspective.

Richard Mellor

Vice President of Loss Prevention

National Retail Federation

***
216 Criminal Background Checks and the EEOC’s Conviction Records Policy

Roberta Meyers

“The Impact of Criminal Background Checks and the EEOC’s Conviction Records 

Policy

on the Employment of Black and Hispanic Workers”

Written Testimony Submitted To

The United States Commission on Civil Rights

Friday, December 7, 2012

Presented by:

Roberta Meyers

Director of National H.I.R.E. Network

Legal Action Center

225 Varick Street, 4th Floor

New York, NY 10014

212-243-1313 ext. 135

rampeeples@lac.org

Thank you for hosting this briefing to discuss the impact of criminal record checks on 

black and Latino job seekers in the labor market. I am Roberta Meyers, Director of Legal 

Action Center’s National Helping Individuals with criminal records Reenter through 

Employment Network (also known as H.I.R.E.). The Legal Action Center is the only 

nonprofit law and policy organization whose sole mission is to fight discrimination against 

people with criminal records, histories of addiction, or HIV/AIDS and to advocate for sound 

public policies in these areas. HIRE, which is a project of Legal Action Center, aims to 

increase the number and quality of job opportunities available to people with criminal 

records by changing public policies, employment practices and public opinion. Since 2001, 

my project has provided leadership on public policy advocacy and technical assistance and 

training all across the country to private and public agencies on strategies to eliminate or 

reduce the number of criminal record barriers faced by jobseekers in the labor market.

For the past decade we have used the Equal Employment Opportunity Commission’s 

(EEOC) guidance on the consideration of arrest and conviction records as a policy model that 

states could adopt as a fair employment standard to give more qualified individuals with 

criminal histories a fair opportunity to compete for employment and qualify for occupational 

licensing. We have also used it to educate employers on the use of criminal records in hiring 
Criminal Background Checks and the EEOC’s Conviction Records Policy 217

decisions. While conducting these educational activities over the years we have also worked

with other legal and policy groups to encourage the EEOC to strengthen its position on

employers’ use of criminal record screenings as well as urged them to become more vigorous

in its investigation of criminal record-based claims of discrimination. Therefore, we

considered it a tremendous victory when the EEOC released its update of the guidance it had

released nearly 30 years ago that discouraged employers from establishing blanket bans

against hiring people with arrest and conviction records.

The update of the EEOC guidance includes new provisions that:

• Put employers on notice that categorical exclusions for people with certain arrest

and conviction records may violate Title VII;

• Emphasized its earlier recommendation that job applications not ask about criminal

records, and if they do ask, that they limit inquiries to conviction records for which

exclusion would be job-related with business necessity;

• Offered a series of examples of common policies and practices that violate Title

VII; and

• Informed local and state governments that barring people with certain criminal

records from jobs or occupational licenses also could violate Title VII.

This issue has become of greatest importance because (1) there are over 65 million

individuals with criminal records in this country; (2) a criminal record is usually the number

one automatic disqualifier for employment and we know that many employers (public and

private) will go as far as noting it on job postings; and (3) we cannot ignore that criminal

records serve as a double stigma for people of color.

In 2006, HIRE partnered with the Center for Community Alternatives in New York to

conduct a project called “Unchaining Civil Rights,” which identified, documented and

described the institutional and structural exclusions in what we called the four Es -

employment, education, enfranchisement and equality and the ways that these exclusions

result in de facto discrimination of racial minorities. We concluded that the structural and

institutional barriers to education and employment for people with criminal records are more

than collateral consequences; they are an abrogation of fundamental civil rights1

. The release

of Michelle Alexander’s book in 2011, The New Jim Crow, catapulted this issue into

mainstream media and has really forced the country to take note and acknowledge that

people of color are significantly and disproportionately represented in the criminal justice

system and that a criminal record has become a surrogate for race-based discrimination

throughout the U.S. Employment statistics for blacks and Latinos, particularly males,

continue to be worse than any other demographic2.

1

 See www.unchainingcivilrights.org. 2

 U.S. Department of Labor, Bureau of Labor Statistics. The Employment Situation—October 2012. Retrieved

from http://www.bls.gov/news.release/pdf/empsit.pdf.
218 Speakers’ Statements

The experimental audit studies of Devah Pager out of Princeton University 

encapsulate the real challenges faced by black and Latino males with or without criminal 

histories in the labor market. In the last study she and Bruce Western conducted in 2004 in 

New York City, they concluded that a black man without a criminal record was less likely to 

get a job than a white man with a criminal record3

. Needless to say, a black man with a 

criminal record barely stood a chance at getting a call back for a job. Race discrimination and 

race bias is pervasive in the job market and we have to attack it from every angle through 

which it exists. 

We respectfully ask that the members of the U.S. Commission on Civil Rights 

consider supporting the EEOC’s position on limiting the use of criminal background checks 

in employment decisions as well work with HIRE to promote criminal record barriers as civil 

and human rights issues, as they are. Here are a few additional thoughts.

• Few states (only 14) have laws prohibiting discrimination against individuals with 

criminal histories in public and/or private employment and/or for occupational 

licensing, and as you know there is no federal law4

• Most states give unfettered access to criminal record information and indefinitely, 

which perpetuates the lifelong stigma suffered by millions of individuals with 

criminal records who are disproportionately people of color. 

. Therefore, we need federal 

enforcement agencies to commit to ensuring that qualified individuals with criminal 

histories are given a fair chance and opportunity to work and not face discrimination.

• Until now, the employer community was not very concerned about being challenged 

on their discriminatory hiring practices because the threat of a criminal record-based 

discrimination lawsuit seemed more unlikely and remote than a negligent hiring 

liability suit.

• Employers must continue to be encouraged to not consider arrest records that did not 

result in a conviction as well as old or minor convictions that really cannot justifiably 

be considered relevant to the ability and potential behavior of an applicant.

We also ask that the Commission:

• Recommend the creation of a federal civil and human rights standard that encourages 

employers to hire qualified applicants with criminal histories and prohibits flat bans 

against hiring qualified individuals with criminal histories.

• Recommend that employers and other non-law enforcement agencies be prohibited 

from inquiring about or using arrest information that did not lead to conviction or 

 3 Devah Pager, Bruce Western, & Bart Bonikowski, Discrimination in a Low-Wage Labor Market: A Field 

Experiment, American Sociological Review, 77, pp. 777-799 (2009). See also Devah Pager, Bruce Western & 

Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with 

Criminal Records, 623 The Annals of the American Academy, pp. 195-199 (2009). 4 Ariz. Rev. Stat. § 13-904(E); Colo. Rev. Stat. § 24-5-101; Conn. Gen. Stat. § 46a-80, Conn. Gen. Stat. § 31-

51i; Fla. Stat. § 112.011; Haw. Rev. Stat. § 378-2.5(a)-(d); Kan. Stat. Ann. § 22-4710(f); Ky. Rev. Stat. §§ 

335B.020 and 335B.070; La. Rev. Stat. § 37:2950; Minn. Stat. § 364.03; N.M. Stat. §§ 28-2-3, 28-2-4, and 28-

206; N.Y. Exec. Law § 296(15), N.Y. Correct. Law §§ 750-753; 18 Pa. Cons. Stat. §§ 9124, 9125; Wash. Rev. 

Code §§ 9.96A.020, 9.96A.030, and 9.96A.060; Wis. Stat. § 111.335.
Criminal Background Checks and the EEOC’s Conviction Records Policy 219

missing dispositions on criminal record reports issued by the Federal Bureau of 

Investigation, state criminal record repositories, and commercial reporting companies.

• Support the enactment of a federal standard based on recommendations outlined in 

the EEOC guidance on the use of background checks for employment purposes when 

screening applicants with criminal records. 

• Recommend that all current and future legislation that authorizes the disqualification 

of individuals with criminal records to include a waiver/appeal process whereby the 

applicant can challenge inaccuracies in criminal record reports, present evidence of 

rehabilitation and provide other mitigating information relevant to their criminal 

history and rehabilitation.

• Support the creation of a federal employment standard that limits how long a criminal 

record can be considered. The period of consideration of the criminal record should 

be based upon the severity of the individual’s criminal history (i.e. misdemeanors-3 

years, felony--5 years), and should be supported by social science research that 

measures the risk of re-offending. 

• Recommend that the federal Office of Personnel Management (OPM) report to 

Congress annually on federal employment policies concerning people with criminal 

records. The annual report should include the number of individuals with criminal 

records who applied for positions, the number of individuals hired or denied, the 

types of jobs they applied for, and whether or not a denial for the position was based 

on their criminal record. 

Thank you for considering my comments on this critical issue. Criminal background 

checks and related employment and licensing policies continue to be an important civil and 

human rights issue. Please consider HIRE as a resource as the Commission continues to work 

on this extremely important issue.

***
220 Speakers’ Statements

Carol R. Miaskoff

STATEMENT OF CAROL R. MIASKOFF

ACTING ASSOCIATE LEGAL COUNSEL

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

BEFORE THE

U.S. COMMISSION ON CIVIL RIGHTS

DECEMBER 7, 2012

I. Introduction

Chairman Castro, distinguished members of the Commission, thank you for the opportunity

to appear before you at this briefing titled “The Impact of Criminal Background Checks and

the EEOC’s Conviction Records Policy on the Employment of Black and Hispanic

Workers.” I am Carol Miaskoff, Acting Associate Legal Counsel for the U.S. Equal

Employment Opportunity Commission. The EEOC is comprised of five presidentiallyappointed and Senate-confirmed Commissioners, including the Chair. The EEOC’s

congressionally-mandated role is to enforce Title VII of the Civil Rights Act of 1964, as

amended, in addition to the other federal equal employment opportunity laws. Title VII

prohibits employment discrimination on the basis of race, color, religion, sex, or national

origin. The statute was last amended in 1991 and it is the subject of judicial construction and

EEOC policy.

My statement today summarizes the EEOC’s Enforcement Guidance on the Consideration of

Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights

Act of 1964, as amended.

5

 The EEOC’s Commissioners approved this Guidance on April 25,

2012 with a bipartisan, 4-1 vote, after two public hearings and over 300 written

submissions.6 This Enforcement Guidance supersedes the EEOC’s four prior policy

statements on the topic from 1987, 1990, and 2007.7

5

 The 2012 Enforcement Guidance is available at

 In short, the updated Guidance stands

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm .

6

 Three members of the United States Commission on Civil Rights submitted written comments in their

individual capacities.

7 Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964, U.S.

Equal Emp’t Opportunity Comm’n (Feb. 4, 1987), http://www.eeoc.gov/policy/docs/convict1.html; EEOC

Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction

Records from Employment, U.S. Equal Emp’t Opportunity Comm’n (July 29, 1987)
Criminal Background Checks and the EEOC’s Conviction Records Policy 221

for the proposition that conviction records may be considered in employment decisions as

evidence of past conduct that may be relevant to an individual’s suitability for employment,

in the context of all the facts. The updated Guidance does not prohibit employers’ use of

criminal background checks or criminal history information to make employment decisions.

The Guidance does, however, outline how employers can use such background checks and

the information they yield in a fact-based and targeted way that is consistent with Title VII.

The 2012 Enforcement Guidance is rooted in a long line of EEOC administrative and federal

court decisions that applied Title VII analysis to determine if individuals with known

convictions experienced unlawful employment discrimination when they were not hired. The

EEOC Commissioners’ first administrative decisions on such Title VII private sector charges

were issued in the late 1960s and 1970s,8

 and continued into the 1980s when the EEOC

Commissioners delegated this authority to staff as the number of charges increased.9

http://www.eeoc.gov/policy/docs/convict2.html

 Federal

courts, in turn, issued Title VII opinions assessing such alleged discrimination starting in

; Policy Guidance on the Consideration of Arrest Records in

Employment Decisions Under Title VII, U.S. Equal Emp’t Opportunity Comm’n (Sept. 7, 1990),

http://www.eeoc.gov/policy/docs/arrest_records.html; Compliance Manual Section 15: Race & Color

Discrimination, U.S. Equal Emp’t Opportunity Comm’n, § 15-VI.B.2 (April 19, 2006),

http://www.eeoc.gov/policy/docs/race-color.pdf.

8 See, e.g., EEOC Decision No. 70-43, 1969 EEOC LEXIS 16 (July 14, 1969) (finding no reasonable cause

where employee was discharged based on a criminal background check reporting a larceny conviction and

several other arrests for which disposition was not shown, where employee had denied having a criminal record

on his job application and employee also was recently charged with assault with intent to commit murder);

EEOC Decision No. 71-1902, 1971 EEOC LEXIS 73 (April 28, 1971)(finding reasonable cause where

employer discharged a White woman dating an African American man due to the suspicion that she had

engaged in criminal activity, even though she had not had any contact with the criminal justice system); EEOC

Decision No. 77-30, 1977 EEOC LEXIS 30 (Aug. 15, 1977) (finding reasonable cause where employer

automatically rejected African American man for employment as a brakeman because he disclosed a narcotics

conviction at the interview; employer did not consider job-relatedness of the conviction or his past employment

record, among other circumstances); EEOC Decision No. 79-18, 1978 WL 5810 (Dec. 5, 1978) (finding no

reasonable cause where a city rejected individual for employment as a uniformed Special Officer, after

fingerprint check came back with five convictions including forgery, robbery, and grand larceny).

9 See, e.g., EEOC Decision No. 81-15, 1981 EEOC LEXIS 1 (Feb. 2, 1981) (finding reasonable cause where

retail employer justified termination of African American man based on conviction for theft of $18 sunglasses

where the conviction was almost four years old, it was his only conviction, and it predated two other periods

when he was employed by the same store as a Management Trainee); EEOC Decision No. 81-6, 1980 WL 8896

(Nov. 7, 1980) (finding reasonable cause where trucking company refused to rehire Hispanic man as a casual

truck driver due to single five-year-old conviction for possession of marijuana and there was evidence that he

had worked successfully as a driver since the conviction; the employer did not submit evidence that the

exclusion was job related); EEOC Dec. No. 80-12, 1980 WL 8881 (Aug. 1, 1980) (finding reasonable cause

where shipping company terminated employment of African-American man after 2 and a half years of

successful work as a part-time dock worker because a background check returned evidence of 15

misdemeanors, mostly for public drunkenness and disorderly conduct between eight and ten years earlier;

employer did not offer evidence of job-relatedness to rebut evidence of prior successful job performance).
222 Speakers’ Statements

197010 and, most recently, in 2007.11 The application of Title VII to criminal record

screening, under both disparate treatment and disparate impact analysis, is clearly

established.

The EEOC decided in 2012 to issue its updated Enforcement Guidance for several reasons.

First, the EEOC's 1987 and 1990 documents were issued before enactment of the Civil

Rights Act of 1991. This Act amended Title VII to expressly incorporate the elements and

the burdens of proof for disparate impact analysis, including interpreting the employer’s

burden of showing that its policy or practice is job related and consistent with business

necessity in light of the Supreme Court’s decision in Griggs v. Duke Power Co.12 Second, in

2007, the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority13called

upon the EEOC to update its three 1987 and 1990 documents. The Third Circuit also

analyzed how to harmonize the risk-based analysis of criminal records exclusions with

Supreme Court disparate impact precedent that largely focuses on the relevance of test results

to job qualifications.

Third, statistics show that the number of Americans with criminal records in the working-age

population has increased significantly since 1990,14

10 Gregory v. Litton Sys., Inc., 316 F. Supp. 401 (CD Cal. 1970) (arrest record); Green v. Mo. Pac. R.R., 523

F.2d 1290, 1293 (8th Cir. 1975) ("Green I"); Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977)

(“Green II”).

 meaning that substantially more people

now face the challenges of entering the workforce after an arrest or conviction than in 1990.

11 El v. S.E. Pa. Transp. Auth., 479 F.3d 232 (3d Cir. 2007).

12 401 U.S. 424 (1971). See 42 U.S.C. 2000e-2(k)(1)(A); 137 CONG. REC. 15273 (1991) (statement of Sen.

Danforth).

13 479 F.3d 232 (3d Cir. 2007).

14 See THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PREVALENCE OF

IMPRISONMENT IN THE U.S. POPULATION, at 3 (2003), http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf

[hereinafter Prevalence of Imprisonment] (“Between 1974 and 2001 the number of former prisoners living in

the United States more than doubled, from 1,603,000 to 4,299,000.”); SEAN ROSENMERKEL ET AL., BUREAU OF

JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, 2006, STATISTICAL TABLES

1 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf (reporting that between 1990 and 2006, there has

been a 37% increase in the number of felony offenders sentenced in state courts); see also PEW CTR. ON THE

STATES, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 4 (2009),

http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_3-26-09.pdf

[hereinafter One in 31] (“During the past quarter-century, the number of prison and jail inmates has grown by

274 percent . . . .[bringing] the total population in custody to 2.3 million. During the same period, the number

under community supervision grew by a staggering 3,535,660 to a total of 5.1 million.”); PEW CTR. ON THE

STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 3 (2008),

http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf

(“[M]ore than one in every 100 adults is now confined in an American jail or prison.”); Robert Brame et al ,

Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21, 25, 26 (2012)

(finding that approximately 1 out of 3 of all American youth will experience at least 1 arrest for a nontraffic

offense by the age of 23).
Criminal Background Checks and the EEOC’s Conviction Records Policy 223

Indeed, arrest and incarceration rates are now especially high for African American and

Hispanic men.15 Finally, with the advent of the Internet, criminal records are easily available

to employers but, at the same time, still include data that may be inaccurate, incomplete, or

misleading.16 The 2012 Enforcement Guidance takes account of all of these factors.

II. Summary of the 2012 Enforcement Guidance

After an introductory section, the 2012 Enforcement Guidance provides the

Commission’s interpretation of Title VII as applied to criminal background exclusions from

employment.

A. Disparate Treatment Analysis

In contrast to the 1987 and 1990 policy documents, the 2012 Enforcement Guidance includes

EEOC’s analysis of Title VII disparate treatment discrimination. The EEOC included this

analysis in light of studies over the last twenty years demonstrating that racial assumptions

about criminality may impact hiring decisions, both when the employer lacks criminal

background check information about job applicants (and may assume that people have

criminal records based on their race)17

15 See. e.g., Prevalence of Imprisonment, supra note 8, at 5, Table 5; cf. Pew Ctr. on the States, Collateral Costs:

Incarceration’s Effect on Economic Mobility

6 (2010),

 and, significantly, also when the employer has

http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653 (“Simply stated,

incarceration in America is concentrated among African American men. While 1 in every 87 white males ages

18 to 64 is incarcerated and the number for similarly-aged Hispanic males is 1 in 36, for black men it is 1 in

12.”).

16 See Dennis A. DeBacco & Owen M. Greenspan, Bureau of Justice Statistics, U.S. Dep’t of Justice, Survey of

State Criminal History Information Systems, 2010, at 2 (2011),

https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafter State Criminal History] (Major Findings:

Criminal history files; Overview of state criminal history record systems, December 31, 2010); SEARCH,

Interstate Identification Name Check Efficacy: Report of the National Task Force to the U.S. Attorney General

21, 22 (1999), www.search.org/files/pdf/III_Name_Check.pdf (“A so-called ‘name check’ is based not only on

an individual's name, but also on other personal identifiers such as sex, race, date of birth and Social Security

Number. . . . [N]ame checks are known to produce inaccurate results as a consequence of identical or similar

names and other identifiers."); id. at 7 (finding that in a sample of 82,601 employment applicants, 4,562 of these

individuals were inaccurately indicated by a “name check” to have criminal records, which represents

approximately 5.5% of the overall sample). Additionally, if applicants deny the existence of expunged or sealed

records, as they are permitted to do in several states, they may appear dishonest if such records are reported in a

criminal background check. See generally Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on

Civil Rights of People with Criminal Records, 30 Fordham Urb. L.J. 1501, 1509-10 (2003) (noting that 29 of

the 40 states that allow expungement/sealing of arrest records permit the subject of the record to deny its

existence if asked about it on employment applications or similar forms, and 13 of the 16 states that allow the

expungement/sealing of adult conviction records permit the subject of the record to deny its existence under

similar circumstances).

17 A 2006 study demonstrated that employers who are averse to hiring people with criminal records sometimes

presumed, in the absence of criminal background checks, that African American men applying for jobs have

disqualifying criminal records. Harry J. Holzer et al., Perceived Criminality, Criminal Background Checks, and

the Racial Hiring Practices of Employers, 49 J.L. & Econ. 451 (2006),
224 Speakers’ Statements

information from applicants about their actual criminal history (based on self-disclosure on

the job application).18 In the latter studies, results demonstrated worse treatment of qualified

African American job applicants who disclosed the same criminal history as White applicants

with equivalent qualifications. Both of these scenarios could support allegations of disparate

treatment discrimination based on race under Title VII.

The EEOC’s 2012 Enforcement Guidance discusses circumstances where an

employer treats individuals with the same criminal history information differently, based on

their race or national origin. The Guidance provides hypothetical examples to illustrate such

discrimination, and also discusses the types of evidence that may indicate that this kind of

discrimination has occurred.

B. Disparate Impact Analysis

The 2012 Enforcement Guidance provides a more in-depth statutory interpretation of Title

VII disparate impact analysis than did the earlier EEOC policy documents. The Guidance

analyzes the statute as amended by the 1991 Civil Rights Act,19 which provides that:

An unlawful employment practice based on disparate impact is established . . . if a

complaining party demonstrates that an employer uses a particular employment

practice that causes a disparate impact on the basis of race, color, religion, sex, or

http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; see also Harry Holzer et al., Urban Inst., Employer

Demand for Ex-Offenders: Recent Evidence from Los Angeles 6-7 (2003),

http://www.urban.org/UploadedPDF/410779_ExOffenders.pdf (describing the results of an employer survey

where over 40% of the employers indicated that they would “probably not” or “definitely not” be willing to hire

an applicant with a criminal record).

18 A 2003 study demonstrated that White applicants who had disclosed the same qualifications and criminal

records as Black applicants were three times more likely to be invited for interviews than the Black applicants.

See Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 958, Figure 6 (2003),

www.princeton.edu/~pager/pager_ajs.pdf. Pager matched pairs of young Black and White men as “testers” for

her study. The “testers” in Pager’s study were college students who applied for 350 low-skilled jobs advertised

in Milwaukee-area classified advertisements, to test the degree to which a criminal record affects subsequent

employment opportunities. The same study showed that White job applicants with a criminal record were called

back for interviews more often than equally-qualified Black applicants who did not have a criminal record. Id.

at 958. See also Devah Pager et al., Sequencing Disadvantage: The Effects of Race and Criminal

Background for Low Wage Job Seekers, 623 Annals Am. Acad. Pol. & Soc. Sci., 199 (2009),

www.princeton.edu/~pager/annals_sequencingdisadvantage.pdf (finding that among Black and White testers

with similar backgrounds and criminal records, “the negative effect of a criminal conviction is substantially

larger for [B]lacks than [W]hites . . . . the magnitude of the criminal record penalty suffered by [B]lack

applicants (60 percent) is roughly double the size of the penalty for [W]hites with a record (30 percent)”); see

id. at 200-01 (finding that personal contact plays an important role in mediating the effects of a criminal stigma

in the hiring process, and that Black applicants are less often invited to interview, thereby having fewer

opportunities to counteract the stigma by establishing rapport with the hiring official).

19 The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105; see also Lewis v. City of Chicago, 130 S. Ct. 2191

(2010) (reaffirming disparate impact analysis); Ricci v. DeStefano, 557 U.S. 557 (2009) (same).
Criminal Background Checks and the EEOC’s Conviction Records Policy 225

national origin and the [employer] fails to demonstrate that the challenged practice is

job related for the position in question and consistent with business necessity. . . .20

The 2012 Enforcement Guidance notes that Congress stated both in the purpose section of

the 1991 Civil Rights Act and in its authoritative interpretive memorandum that “[t]he terms

‘business necessity’ and ‘job related’ are intended to reflect the concepts announced by the

Supreme Court in” Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in the other

Supreme Court decisions prior to Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642

(1989).

21

The Enforcement Guidance turns to a step-by-step analysis of each element of a Title VII

disparate impact case, with an emphasis on how these play out in EEOC administrative

investigations of criminal record exclusions.

The first step of disparate impact analysis is to identify the particular policy or practice that

allegedly caused the disparate impact. The Enforcement Guidance provides examples of

relevant information to consider when making this determination.

The second step is to determine whether the particular policy or practice caused the disparate

impact on a Title VII-protected basis. For this step, the Commission cites to extensive

national criminal justice data to demonstrate that Blacks and Hispanics are arrested and

incarcerated in numbers greatly disproportionate to their representation in the general

population.22

20 42 U.S.C. § 2000e-2(k)(1)(A)(i) (emphasis supplied). Title VII states that if an employer successfully

demonstrates that its policy or practice is job related for the position in question and consistent with business

necessity, the plaintiff has the opportunity to demonstrate that there is a less discriminatory “alternative

employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but

that the employer refused to adopt. 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C).

 The EEOC concluded that this data provides a basis for the agency, in its

administrative investigations, to consider such disparate impact claims. The EEOC makes

clear, however, that during its investigations, the employer is welcome to provide relevant

evidence to demonstrate that its specific policy or practice does not have a disparate impact

21 137 Cong. Rec. S15, 273-01 (daily ed. Oct. 25, 1991) (statement of Sen. Danforth); see also Civil Rights Act

of 1991, §§ 3(2) & 105(b) (adopting the Griggs definition of “business necessity” and stating that only the

interpretative memorandum quoted may be used in construing the Act).

22 See, e.g., UNIF. CRIME REPORTING PROGRAM, FED. BUREAU OF INVESTIGATION, CRIME IN THE U.S. 2010, at

Table 43a (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-

2010/tables/table-43/10tbl43a.xls (reporting that in 2010, 28% of all arrests were of African Americans); MARK

MOTIVANS, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL JUSTICE STATISTICS, 2009 –

STATISTICAL TABLES, at 6, Table 1.4 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf (reporting that

from October 1, 2008 to September 30, 2009, 45.5% of drug arrests made by the DEA were of Hispanics or

Latinos); THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PREVALENCE OF

IMPRISONMENT IN THE U.S. POPULATION, 1974–2001, at 1, 3, 8 (2003),

http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf (estimating in 2001 that 1 out of every 17 White men

(5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, assuming that

current incarceration rates remain unchanged; this rate climbs to 1 in 6 (or 17.2%) for Hispanic men and 1 in 3

(or 32.2%) for African American men).
226 Speakers’ Statements

on Title VII-protected individuals. For example, an employer may present regional or local 

data showing that African American and/or Hispanic men are not arrested or convicted at 

disproportionately higher rates in the employer’s particular geographic area. An employer’s 

own applicant data may also show that its policy or practice did not cause a disparate impact. 

If it is determined that a particular policy or practice has a disparate impact, then, under the 

third step in the analysis, the employer can avoid liability for discrimination by 

demonstrating that its policy or practice is job related for the position in question and 

consistent with business necessity.

Finally, under the fourth step, evidence of a less discriminatory alternative is considered.

C. Disparate Impact -- Job Related and Consistent with Business Necessity

The discussion of Title VII’s business necessity standard is the most detailed section in the 

Guidance, because of its importance for employers. Using a screen or selection procedure 

that has an unintended disparate impact on a protected group is not unlawful under Title VII 

if the employer shows that it was job related for the position in question and consistent with 

business necessity, and there is no evidence of a less discriminatory alternative.

First, the Guidance reaffirms the differences between arrest and conviction records, as 

previously stated in the EEOC’s 1987 and 1990 policy documents. The fact of an arrest does 

not establish that criminal conduct has occurred, and an exclusion based on an arrest, 

standing alone, is not job related and consistent with business necessity. However, an 

employer may make an employment decision based on the conduct underlying an arrest if the 

conduct makes the individual unfit for the position. In contrast, a conviction record will 

usually serve as sufficient evidence that a person engaged in particular conduct.23

The Guidance then summarizes Supreme Court precedent24

 23 A conviction record shown to have factual errors or omissions may not, however, serve as sufficient evidence 

that a person engaged in the specified criminal conduct. The persuasiveness of the conviction record will 

depend on the nature of the errors, omissions, or circumstances.

and focuses on the job-related 

and consistent with business necessity standard as applied to criminal record exclusions by 

24 See, e.g., Griggs, 401 U.S. 431, 436 (stating that it is the employer’s burden to show that its policy or practice 

is one that bear[s] a demonstrable relationship to successful performance of the jobs for which it was used” and 

“measures the person for the job and not the person in the abstract”); Albemarle Paper Co. v. Moody, 422 U.S. 

405, 430-31 (1975) (endorsing the EEOC’s position that discriminatory tests are impermissible unless shown, 

by professionally acceptable methods, to predict or correlate with “‘important elements of work behavior which 

comprise or are relevant to the job or jobs for which candidates are being evaluated’” (quoting 29 C.F.R. § 

1607.4(c))); Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977) (concluding that using height and weight as 

proxies for strength did not satisfy the business necessity defense because the employer failed to establish a 

correlation between height and weight and the necessary strength, and also did not specify the amount of 

strength necessary to perform the job safely and efficiently).
Criminal Background Checks and the EEOC’s Conviction Records Policy 227

the Eighth Circuit in Green v. Missouri Pacific Railroad25 and the Third Circuit in El v.

SEPTA.

26 The EEOC reiterates the Green court’s conclusion that, where there is disparate

impact, it violates Title VII for an employer to deny employment “solely and automatically”

based on a conviction; however, an employer may consider a prior criminal record if it “takes

into account the nature and gravity of the offense or offenses, the time that has passed since

the conviction and/or completion of sentence, and the nature of the job for which the

applicant has applied.”27 In the 2012 Enforcement Guidance, the EEOC applies these three

factors in light of the El court’s conclusion that Title VII requires employers to justify

criminal record policies or practices that have a disparate impact by demonstrating that they

“accurately distinguish between applicants [who] pose an unacceptable level of risk [in the

workplace] and those [who] do not.”28 The Third Circuit indicated that empirical data may be

relevant to making this assessment, including recidivism data.29

Building on these fact-based approaches, the Guidance discusses the two ways in which the

EEOC believes employers will consistently meet the business necessity standard, and thereby

avoid Title VII liability:

• The first way of meeting the business necessity standard involves validation of the

policy under the Uniform Guidelines on Employee Selection Procedures if relevant

data is available and validation is possible.30

25 523 F.2d 1290, 1293 (8th Cir. 1975) (Green I). “In response to a question on an application form, Green [a

29-year-old African American man] disclosed that he had been convicted in December 1967 for refusing

military induction. He stated that he had served 21 months in prison until paroled on July 24, 1970.” Id. at

1292, 93. Based on this record, the employer found that he was not qualified for employment. Id. at 1293.

Turning to the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Eighth Circuit

analyzed whether this exclusion was job related and consistent with business necessity. Id. at 1295-96.

Subsequently, in Green v. Missouri Pac. R. Co. 549 F.2d 1158, 1160-61 (8th Cir. 1977) (Green II), the Eighth

Circuit ordered “that defendants shall be enjoined from disqualifying and denying employment to an applicant

solely and automatically for the reason that the applicant has been convicted of a criminal offense; provided,

however, that nothing herein shall prevent defendant . . . from considering an applicants’ [sic] prior criminal

record as a factor in making individual hiring decisions so long as defendant takes into account the nature and

gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence,

and the nature of the job for which the applicant has applied.”

26 479 F.3d 232 (3d Cir. 2007).

27 549 F.2d 1158, 1160-61.

28 479 F.3d. at 245.

29 Id. at 247 (stating that the outcome of the case might have been different if the plaintiff had, “for example,

hired an expert who testified that there is a time at which a former criminal is no longer any more likely to

recidivate than the average person, . . . [so] there would be a factual question for the jury to resolve”).

30 See 29 C.F.R. § 1607.5 (describing the general standards for validity studies).
228 Speakers’ Statements

• The second way of meeting the business necessity standard involves (1) developing a 

targeted screen considering at least the nature of the crime, the time elapsed, and the 

nature of the job (the three factors identified by the court in Green v. Missouri Pacific 

Railroad31), and then (2) providing an opportunity for an individualized assessment 

for those people targeted for exclusion, to determine if the policy as applied is job 

related and consistent with business necessity.

o “Individualized assessment” generally means that an employer informs the 

individual that he may be excluded because of past criminal conduct; provides 

an opportunity to the individual to demonstrate that the exclusion does not 

properly apply to him; and considers whether additional information shows 

that the policy as applied is not job related and consistent with business 

necessity. The individual’s showing may include information that he is not 

correctly identified in the criminal record, or that the record is otherwise 

inaccurate.

o Other relevant individualized evidence presented may include, for example:

 The facts or circumstances surrounding the offense or conduct;

 The number of offenses for which the individual was convicted;

 Older age at the time of conviction or release from prison; 

 Evidence that the individual performed the same type of work, post 

conviction, with the same or a different employer, with no known 

incidents of criminal conduct;

 The length and consistency of employment history before and after the 

offense or conduct; 

 Rehabilitation efforts, e.g., education/training; 

 Employment or character references and any other information 

regarding fitness for the particular position; and

 Whether the individual is bonded under a federal, state, or local 

bonding program.

If the individual does not respond to the employer’s attempt to gather additional information 

about his background, the employer may make its employment decision without the 

information.

In the 2012 Enforcement Guidance, the EEOC illustrates the application of these standards.

First, the EEOC provides examples of exclusions that would violate Title VII because they 

do not apply this analysis at all; rather, they use automatic, across-the-board exclusions from 

 31 549 F.2d 1158 (8th Cir. 1977).
Criminal Background Checks and the EEOC’s Conviction Records Policy 229

all employment because of any criminal conduct. When such exclusions have a disparate 

impact, they are inconsistent with Title VII because they do not consider the dangers 

associated with particular criminal conduct and the risks in particular positions. 

Second, the EEOC provides examples of “targeted exclusions” supplemented by 

individualized assessment. One of the examples shows a targeted exclusion and 

individualized assessment that satisfies Title VII; the other example describes a targeted 

exclusion and individualized assessment that is inconsistent with Title VII.

The EEOC also explains that individualized assessment is not always required:

An employer may be able to justify a targeted criminal records screen solely under 

the Green factors. Such a screen would need to be narrowly tailored to identify 

criminal conduct with a demonstrably tight nexus to the position in question. Title VII 

thus does not necessarily require individualized assessment in all circumstances. 

However, the use of individualized assessments can help employers avoid Title VII 

liability by allowing them to consider more complete information on individual 

applicants or employees, as part of a policy that is job related and consistent with 

business necessity.32

D. Disparate Impact -- Federal, State and Local Restrictions 

In the last two sections of the Guidance, the EEOC discusses federal, state, and local 

restrictions concerning the use of criminal records in employment decisions. The EEOC 

recognizes that many employers are subject to federal laws that prohibit them from 

employing people with certain convictions in specified jobs. The EEOC states that an 

employer’s compliance with such federal laws – such as those regulating aspects of the 

transportation and financial industries – will prevent Title VII liability. At the state or local 

level, however, the text of Title VII itself – the statute as written by Congress – compels a 

different result. Title VII prohibits disparate impact discrimination and it also includes 

language that preempts state or local laws when those laws “purport[] to require or permit the 

doing of any act which would be an unlawful employment practice” under the statute.33

Therefore, if an employer’s exclusionary policy or practice has a disparate impact and is not

job related and consistent with business necessity, the fact that it was adopted to comply with 

a state or local law does not shield the employer from Title VII liability.

At the end of the 2012 Guidance document, the EEOC lists several best practices for 

employers who consider criminal record information when making employment decisions.

Some of these best practices include: eliminating exclusions that prohibit the employment of 

individuals based on any or all criminal records; developing a narrowly tailored written 

 32 2012 Enforcement Guidance at V.B.8. The Enforcement Guidance then sets forth the fourth and final analytic 

step: determining if there is a less discriminatory alternative that the employer declined to use.

33 42 U.S.C. § 2000e-7. 
230 Speakers’ Statements

policy and procedure for considering criminal records; and training hiring officials and

decisionmakers on how to implement the policy and procedure consistent with Title VII.

III. The Enforcement Guidance’s Impact on the Employment of Black and Hispanic

Workers

A large number of people in the working-age population have criminal records, and the

number is expected to grow.34 This coincides with increased employer reliance on criminal

background checks as a screening tool.35 The EEOC updated its Enforcement Guidance in

part to provide more clarity and analysis on these issues so that employers have a better

roadmap for Title VII compliance as they make assessments based on an applicant’s or

employee’s criminal history information. However, some have argued that the Guidance will

hurt the employment prospects of Black and Latino workers. For example, some have

incorrectly asserted that the Guidance prohibits criminal background checks and that it

therefore will have a negative effect on minority employment. These arguments are

misguided.

As I stated at the beginning of my remarks, the updated Guidance does not prohibit

employers’ use of criminal background checks or criminal history information to make

employment decisions. The Guidance does, however, outline how employers can use such

background checks and the information they yield in a fact-based and targeted way that is

consistent with Title VII. While background checks can help employers gain a better

understanding of an individual’s prior conduct, this tool has its limitations. Several studies

have documented that criminal records may be inaccurate or incomplete.36

34 See JOHN SCHMITT & KRIS WARNER, CTR. FOR ECON. & POLICY RESEARCH, EX-OFFENDERS AND THE LABOR

MARKET 12 (2010),

 In the 2012

www.cepr.net/documents/publications/ex-offenders-2010-11.pdf (“In 2008, ex-prisoners

were 2.9 to 3.2 percent of the total working-age population (excluding those currently in prison or jail) or about

one in 33 working-age adults. Ex-felons were a larger share of the total working-age population: 6.6 to 7.4

percent, or about one in 15 working-age adults [not all felons serve prison terms].”); see id. at 3 (concluding that

“in the absence of some reform of the criminal justice system, the share of ex-offenders in the working-age

population will rise substantially in coming decades”).

35 SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL BACKGROUND CHECKS,

slide 3 (Jan. 22, 2010), http://www.slideshare.net/shrm/background-check-criminal?from=share_email

[hereinafter CONDUCTING CRIMINAL BACKGROUND CHECKS] (73% of the responding employers reported that

they conducted criminal background checks on all of their job candidates, 19% reported that they conducted

criminal background checks on selected job candidates, and a mere 7% reported that they did not conduct

criminal background checks on any of their candidates). The survey excluded the “not sure” responses from its

analysis, which may partly account for the 1% gap in the total number of employer responses. Id.

36 See, e.g., U.S. DEP’T OF JUSTICE, THE ATTORNEY GENERAL’S REPORT ON CRIMINAL HISTORY BACKGROUND

CHECKS 17 (2006), http://www.justice.gov/olp/ag_bgchecks_report.pdf (reporting that only 50% of arrest

records in the FBI’s III database were associated with a final disposition); SEARCH, INTERSTATE

IDENTIFICATION NAME CHECK EFFICACY: REPORT OF THE NATIONAL TASK FORCE TO THE U.S. ATTORNEY

GENERAL 21–22 (1999), www.search.org/files/pdf/III_Name_Check.pdf (reporting that criminal background

checks may produce inaccurate results because criminal records may lack “unique” information or because of

“misspellings, clerical errors or intentionally inaccurate identification information provided by search subjects

who wish to avoid discovery of their prior criminal activities”).
Criminal Background Checks and the EEOC’s Conviction Records Policy 231

Enforcement Guidance, the EEOC construes Title VII to allow for consideration of criminal 

records in the context of facts about the criminal conduct, the job, the individual’s work 

experience, and other relevant information or data.

IV. Conclusion 

Thank you again for inviting me here today to testify about this very important issue.

***
232 Criminal Background Checks and the EEOC’s Conviction Records Policy

Montserrat Miller

Montserrat Miller, Partner at Arnall Golden Gregory LLP, counsel for NAPBS

Written Testimony of the

National Association of Professional Background Screeners

U.S. Commission on Civil Rights Briefing

December 7, 2012

on

Assessing the Impact of Criminal Background Checks and the Equal Employment

 Opportunity Commission’s Conviction Records Policy on the Employment of Black

 and Hispanic Workers

The National Association of Professional Background Screeners (NAPBS) is a trade

association representing screening professionals involved in employment and tenant

background screening.

Our testimony will discuss: (i) the history and role of the NAPBS; (ii) the value of

background screens as a sound business practice and a risk mitigation tool; (iii) compliance

with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA); and (iv) the Equal

Employment Opportunity Commission’s (EEOC) guidance on the use of criminal history

records, specifically addressing the Ban the Box guidance, individualized assessments and

the treatment of state laws.

NAPBS

The NAPBS is a trade association founded in 2003 which represents 681 members, many

of whom are engaged in employment and tenant background screening across the country.
Criminal Background Checks and the EEOC’s Conviction Records Policy 233

NAPBS testimony will focus on the member companies engaged in the business of providing 

employment screening services directly to end users, such as employers, businesses and 

volunteer organizations. The majority of these member companies are small businesses, with 

25 or less employees although our membership includes a range of companies – from 

Fortune 100 companies to small local businesses. Collectively NAPBS member companies 

conduct millions of employment and tenant screening checks each year. 

In the employment context, we provide background checks for private employers, 

volunteer organizations, non-profits, government, public utilities, healthcare, higher 

education and publicly held corporations. The NAPBS exists to promote ethical business 

practices, compliance with the FCRA, equal employment opportunity and state consumer 

protection laws relating to the background screening profession. The NAPBS provides 

educational programs aimed at empowering members to better serve clients and to maintain 

standards of excellence in the background screening profession. This includes a company 

accreditation program, individual FCRA certification programs, as well as a provider exam.

In addition, monthly webinars and Annual and Mid-Year Conferences provide NAPBS 

members with even more opportunities for educational courses.

In the past 10 years there has been an increase in the number of background screens 

conducted for employment purposes. There are several factors leading to this increase, 

including increased security concerns after 9/11 and greater emphasis by employers to focus 

on “safe hiring” to protect their business, employees and customers. Employers value a 

“good hire” over a “bad hire” and seek to ensure that the right person is hired for the right job 

to avoid potential litigation, shareholder suits or employee theft and fraud. In addition, there 

has been an increase in the number of federal, state and local lawmakers enacting laws 

mandating checks, especially for the most vulnerable populations, such as children and the 

elderly. 

One important factor to bear in mind with this increase in the number of background 

screens is an associated increase in employers and the public’s desire to “know more” about 

individuals. With the desire for greater knowledge comes an increase in the number of 

individuals conducting their own online Google searches as well as an increase in the number 

of instant online searches available to the general public. However, there is a distinction 

between a Google or instant online search and a background screening report created by a 

professional background screening company under the requirements of the FCRA. A 

professional screening firm providing background reports for employment purposes is 

required to follow strict requirements pursuant to the FCRA and other state and local laws 

that limit how information is reported. Use of an online instant website or search engine 

offers none of the consumer protections afforded under the FCRA and other applicable laws.

Value of Background Checks

The fair and appropriate use of criminal histories is one of the most important tools 

organizations have to protect themselves, their employees, customers and assets. We believe 

that background screening is an effective tool used by employers to protect persons, property 

and employers from risks. Risks such as theft in the workplace, employee on employee 
234 Speakers’ Statements

violence, as well as ensuring that only appropriately screened individuals deliver goods or 

provide services in our homes. To be clear, background screening is not conducted to keep 

individuals out of the workplace or to, for instance, impair reintegration of ex-offenders into 

the workplace. Rather, background screens are conducted to facilitate the right person for the 

right job. Background screens provide employers with information to make informed hiring 

decisions. 

These ideas are similar to what the federal government argued for in NASA v. Nelson, 

a case regarding the use of criminal background checks by the federal government on 

contract employees. The federal government argued before the U.S. Supreme Court for the 

right to conduct such checks. In a unanimous Supreme Court opinion, the Court said this:

“...the Government has an interest in conducting basic background checks in order to ensure 

the security of its facilities and to employ a competent, reliable workforce to carry out the 

people’s business.”1 Further, the Court stated that, “like any employer, the Government is 

entitled to have its projects staffed by reliable, law-abiding persons who will ‘efficiently and 

effectively’ discharge their duties.”2 The private sector is no different.

In many states, background checks are required for a variety of private-sector 

positions and state licenses. Many states have also passed laws or have common-law 

doctrines holding employers liable for negligent hiring and negligent retention of employees 

with a history of violent behavior that cause harm to co-workers or the public. Obviously, a 

consensus exists among most policy-makers that criminal background checks are an 

effective, important, and practical way to protect vulnerable individuals such as children, the 

elderly and the disabled, as well as the general public who might invite strangers into their 

homes for repairs and deliveries without knowledge of their criminal history. Employers and 

volunteer organizations want to make informed hiring decisions within the bounds of the law, 

and the use of background checks is one such tool.

As long as there is workplace violence, fraud, theft and a need to protect vulnerable 

populations, there will always be a need to review the criminal histories of applicants. We 

understand the frustration some have in finding employment, especially in a time of national 

economic stress, and we also appreciate the strong desire to reintegrate ex-offenders into 

American society. However, attempts to ease unemployment frustration or reentry desires 

should not come at the expense of keeping people and businesses safe from physical or 

financial harm.

FCRA Compliance

In order to appreciate the regulatory oversight of background screening companies 

and the background reports they prepare and provide to employers, it is important to spend 

some time discussing the FCRA and the role of the Federal Trade Commission (FTC) as well 

as the Consumer Financial Protection Bureau (CFPB). Both of these federal agencies have 

enforcement and rulemaking authority over background screening companies. Additionally, 

 1 NASA v. Nelson, 562 U.S. 2011, p. 3 (2011). 2 Id. at page 16.
Criminal Background Checks and the EEOC’s Conviction Records Policy 235

employers must adhere to the recently released guidance by the EEOC entitled 

“Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII 

of the Civil Rights Act of 1964”3 (“EEOC Guidance”). Finally, both background screening 

companies and employers must be aware of state and local consumer protection laws 

regarding the reporting and use of criminal history information for employment screening 

purposes.

The following seeks to provide a general overview of the FCRA and background 

screening process as conducted by NAPBS member companies.

• Who is a “background screener”? Generally, a background screener is defined 

under the FCRA as a “consumer reporting agency” (CRA) and a CRA generates a 

“consumer report,” often referred to as a background report or check.4 A consumer 

report is defined by the FCRA as a report “bearing on a consumer’s credit worthiness, 

credit standing, credit capacity, character, general reputation, personal characteristics, 

or mode of living” which is used for, among other reasons, employment purposes.5

• Consent. Written consent is required before a background check can be run on a job 

applicant and that consent is required by the FCRA.6

• Consumer Protections. Job applicants and other individuals who consent to a 

background check must be provided with a document entitled “A Summary of Your 

Rights Under the Fair Credit Reporting Act” which explains their major rights under 

the FCRA, including the right to dispute incomplete or inaccurate information in a 

consumer report.

• How are Background Checks Conducted? In order for a CRA to furnish a 

consumer report there must be a “permissible purpose” under the FCRA, and one 

such "permissible purpose" is for employment screening, defined in the law as, "...a 

report used for the purpose of evaluating a consumer for employment, promotion, 

reassignment or retention as an employee."7 CRAs operate nationally and their 

screening services are driven by an individual’s name, date of birth and social 

security number. Most primary sources of criminal information are stored by name 

and date of birth. Other verifiers, such as middle initials and address history may be 

used to verify the identity of an individual and CRAs obtain information from a 

variety of sources. 

• What Does a Background Report Include? A consumer report can include 

information from a variety of sources, including public record information such as 

 3 U.S. Equal Employment Opportunity Commission, Consideration of Arrest and Conviction Records in 

Employment Decisions Under Title VII of the Civil Rights Act of 1964, Number 915.002 (April 25, 2012).

4 Fair Credit Reporting Act, 15 U.S.C. § 1681a.

5 Id. at § 1681a(d). 6 Id. at § 1681b(b). 7 Id. at § 1681b(a)(3).
236 Speakers’ Statements

criminal information, driving records, address history, credit history or employment 

and education verifications.

• What Happens if a Background Report Includes Inaccurate Information? There 

are times when a background report may contain inaccurate or incomplete 

information due, for instance, to court inaccuracies or lack of identifiers. Although 

such instances are the exception rather than the rule, individuals are protected by the 

FCRA and they have a right to contest the accuracy of the report and where 

appropriate, corrections must be made. 

• Contesting a Background Report. An individual has a right under the FCRA to 

challenge the accuracy and completeness of a report and CRAs must re-investigate 

the disputed information, within 30 days free of charge.8 To facilitate the process of 

individuals contesting a background report, employers must provide individuals with 

pre-adverse and adverse action notices if any adverse action is going to be taken 

based in whole or in part on a consumer report.9 Employers must also provide 

individuals with a copy of the report and a written summary of their rights under the 

FCRA.

• Accuracy of Consumer Reports. Accuracy of the information in consumer reports is 

paramount as customers demand it, the law requires it and NAPBS expects it from its 

members. The FCRA specifically requires that whenever a CRA prepares a consumer 

report it must “follow reasonable procedures to assure maximum possible accuracy of 

the information concerning the individual about whom the report relates”.10

To summarize, background checks conducted by NAPBS member companies must follow 

steps in place under the FCRA. Similar to the banking industry, CRA’s must follow “know 

your client” procedures in accordance with the FCRA in order to establish that the client is a 

legitimate business with a permissible purpose for the data.11 Prior to requesting a consumer 

report, an employer must provide to the prospective employee a written notice stating what 

information will be requested, the source of the information and the purpose for which it will 

be used. An employer must also provide a copy of the consumer report to the individual upon 

request, and prior to taking an adverse action which is based in whole or in part on the 

consumer report. With the report, an employer must also provide a copy of the FTC’s 

document entitled "A Summary of Rights Under the Fair Credit Reporting Act."12

 8 Id. at § 1681i.

The 

employer must then wait a reasonable period of time before making the ultimate decision 

thereby allowing the individual the opportunity to dispute any inaccurate information in the 

report. If an adverse employment action is taken against a prospective employee based on 

any information contained in a consumer report, the end user must provide the name and 

9 Id. at § 1681b(b)(3). 10 Id. at § 1681e. 11 Id. at § 1681e. 12 Effective January 1, 2013, this document will be provided pursuant to the Consumer Financial Protection 

Bureau’s authority. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 237

contact information, including a toll free number of the CRA to the individual. Individuals 

can also request and obtain all the information about themselves in the files of a CRA and 

they have the right to dispute incomplete or inaccurate information.

EEOC Guidance

The EEOC Guidance ignores the important role that background checks play in 

helping protect persons and property as well as gives scant attention to the role of the FCRA. 

Employers and volunteer organizations around the country rely on background checks to 

make informed hiring decisions to help keep workplaces safer and to aide in the selection of 

the best candidate for the job. The EEOC itself relies on background checks when hiring.

As companies who not only conduct background screens on our own employees, but 

also provide criminal history reports to employers, we have concerns with the following parts 

of the EEOC Guidance:

• Lack of guidance in the guidance and confusion caused by the EEOC Guidance’s 

“individualized assessments” and the role of the FCRA in the adverse action process;

• Treatment of state requirements and law;

• Ban the Box as a Best Practice;

• Employers having to re-visit a criminal history, conviction and/or rehabilitation 

certificates and the potential to re-adjudicate one’s criminal history. 

By replacing the longstanding, concise policy with a new 52 page confusing and 

complex document leaves employers guessing as to what is/ is not a permissible use of 

criminal history background checks for employment purposes. Furthermore, the EEOC 

Guidance imposes new burdens on responsible employers who seek to comply and avoid an 

EEOC investigation. The introduction of “individualized assessments” is an onerous, time 

consuming and costly process, especially for small businesses and those with high turnover.

The EEOC Guidance is confusing to employers who are attempting to comply with 

state and local laws designed to protect the public from job applicants with an unsavory past. 

Employers who comply with a state law that bars the company from hiring an ex-drug 

offender as a pharmacist or a security guard with a prior felony conviction has no assurance 

that he or she may not be found to be in violation of Title VII of the Civil Rights Act of 1964. 

The EEOC Guidance ignores the public safety determinations of state and local lawmakers 

when it states, “...if an employer’s exclusionary policy or practice is not job related and 

consistent with business necessity, the fact that it was adopted to comply with a state or local 

law or regulation does not shield the employer from Title VII liability.”13

 13 U.S. Equal Employment Opportunity Commission, Consideration of Arrest and Conviction Records in 

Employment Decisions Under Title VII of the Civil Rights Act of 1964, Number 915.002, p. 24 (April 25, 

2012).

The guidance 

provided in the EEOC Guidance as to when a state or local law is a “good” law versus a 

“bad” law which would amount to an unlawful employment practice requires employers to 
238 Speakers’ Statements

second-guess state and local lawmakers and places them in a Catch-22. Either they comply 

with the state or local law or risk a Title VII investigation by the EEOC.

The EEOC Guidance states that, “as a best practice...the Commission recommends 

that employers not ask about convictions on job applications and that, if and when they make 

such inquiries, the inquiries be limited to convictions for which exclusion would be job 

related for the position in question and consistent with business necessity.”14 The reality of 

the EEOC Guidance is that employers will de facto treat it as law or run the risk of an EEOC 

investigation. Without opining on whether Ban the Box is a good policy or not, in practice, 

many employers use the job application for several purposes, including determining the 

truthfulness of job applicants. The reality is that applicants do lie on job applications and 

their resumes as well as under- or overstate their past or their qualifications and employers 

should be able to consider such during the hiring process.

We can all agree that the re-integration of ex-offenders into society is important. The 

use of background screening is not the dominant cause of the troubles ex-offenders face. The 

problems facing ex-offenders go well beyond an employer’s use of background screening in 

the hiring process. Substance abuse, lack of education and the absence of a stable family 

relationship can be looked at as problems facing the ex-offender. These are issues which we 

can all agree should and must be addressed. 

Conclusion

We appreciate the opportunity to provide this testimony to the U.S. Commission on 

Civil Rights given the importance and value of background screening. 

***

 14 Id. at page 13.
239 Criminal Background Checks and the EEOC’s Conviction Records Policy

Julie T. Payne

Submission of Julie T. Payne

General Counsel, G4S Secure Solutions (USA) Inc.

Before the U.S. Commission on Civil Rights

Hearing on

Assessing the Impact of Criminal Background Checks and the Equal 

Employment Opportunity Commission’s Conviction Records Policy on the Employment 

of Black and Hispanic Workers

December 7, 2012

Julie Payne, General Counsel

G4S Secure Solutions (USA) Inc.

1395 University Boulevard

Jupiter, Florida 33458

julie.payne@g4s.com

Chairman Castro, Vice-Chairman Thernstrom and members of the Commission, 

thank you for this opportunity to testify regarding the impact of the Equal Employment 

Opportunity Commission’s overreaching criminal conviction records policy on the business 

community, our employees, our customers and the general public.

My name is Julie Payne, and I am the General Counsel for G4S Secure Solutions 

(USA) Inc., a leading security company in the United States. G4S provides a wide range of 

security services and technology solutions. We employ more than 33,000 security officers 

across the U.S. Nearly 8,000 of our officers are armed. G4S contracts to provide security 

services to nearly every sector of our country’s critical infrastructure, including government 

buildings and facilities, banks, commercial buildings, critical manufacturing, hospitals, petrochemical plants, nuclear power generation stations, transportation facilities and water 

treatment plants. Security officers have wide access to valuables and property, they often 

work independently without close supervision, and they are perceived by the public as an 

authority figure in uniform.

G4S is very concerned about hiring individuals with criminal felony convictions or 

misdemeanor convictions involving, among other things, theft and crimes of violence. Our 

vigilance helps ensure that the officers that G4S places on its clients’ properties are qualified 

and trustworthy to be placed in positions protecting people, property, products and 

reputations. Our customers rely on and most contractually require G4S to provide security 

officers who do not have criminal convictions in their backgrounds. Our customers rely upon 

us to ensure that security personnel who are on their sites protecting their personnel and 

property are not a potential threat.
240 Speakers’ Statements

I am here today to cast light on the EEOC’s targeting of companies, including my 

own, over legitimate and necessary business practices. The EEOC, relying on recent 

enforcement guidance, seeks to create “class” type actions out of individual charges and is 

targeting hundreds of employers who conduct criminal background checks.

I. EEOC’s Case Against G4S Secure Solutions Inc.

In April 2010, David Coleman – an individual with two prior convictions for theft –

applied for a position with G4S in Pennsylvania. G4S did not hire Mr. Coleman as a result of 

his convictions, which the company discovered through a criminal background check. In 

November 2010, Mr. Coleman filed a charge of discrimination claiming G4S’s refusal to hire 

him was based on his race, and that the use of criminal background checks adversely impacts 

African Americans. G4S responded to the charge by explaining its neutral policy of not 

hiring individuals who have been convicted of theft.

On May 11, 2011, the EEOC’s Philadelphia office expanded the agency’s 

investigation beyond the charging party to include G4S applicants and employees across the 

United States who were possibly aggrieved. In doing so, the EEOC sent a series of requests 

for information that were incredibly extensive and unreasonably burdensome seeking a vast 

amount of information related to the company’s hiring policies and information about every 

employee and applicant of G4S, its parents, subsidiaries, affiliates, successors, predecessors, 

agents, and assigns and encompassing all facilities located in the United States and its 

territories. It sought the information for a period of time dating back to the date when G4S 

first implemented its policy regarding criminal convictions to the present. (G4S, formerly 

known as Wackenhut, was founded in 1958 and has been utilizing criminal background 

screening from the beginning. The exact date a policy was first implemented is not known.)

G4S has hired multiple lawyers and statisticians to assist with complying with these onerous 

requests. We have spent hundreds of thousands of dollars to an uncertain result.

G4S cannot afford to hire security officers who it knows have been convicted of theft 

or dishonesty. Those persons, including Mr. Coleman, have already demonstrated that they 

are capable of committing theft and are not suitable for security officer positions with G4S.

G4S should not have to bear the legal, financial and reputational risk of hiring persons who 

have been convicted of theft into positions where the opportunity for theft is great and where 

our customers have entrusted us to protest their assets.

II. G4S’ Use of Criminal Background Screening Information Generally

With respect to G4S's written policy on Screening, Basic Qualification and 

Interviewing of Applicants, security officer applicants who received a conditional offer of 

employment are required to pass a background check that includes a review of criminal 

conviction information. When criminal conviction information results in a disqualification 

issue, the security officer applicant receives notice of potential disqualification based upon 

information in the background investigation report and has the ability to dispute the 

information and may also request a disqualification waiver. If a waiver is requested, the local 

office where the applicant applied obtains information from the applicant about the 
Criminal Background Checks and the EEOC’s Conviction Records Policy 241

conviction and reviews the circumstances of the conviction in light of the position and 

significant business necessity considerations related to safety and security. After reviewing 

the circumstances of a criminal conviction and determining that a waiver may be warranted, 

the local office may elevate a request for a disqualification waiver to the Chief Operating 

Officer. G4S's Chief Operating Officer reviews the information and circumstances in light 

G4S's significant business necessity considerations for the security/safety sensitive position. 

The Chief Operating Officer makes all final decisions on disqualification waivers. If at any 

point during appeal/waiver process, a decision is made to uphold a disqualification, the 

applicant is notified in writing of adverse employment action based upon information in the 

background check. (Mr. Coleman, the complainant referenced above, received a complete 

copy of the Background Screening Report along with a copy of The Summary of Your 

Rights under the Fair Credit Reporting Act. However, Mr. Coleman did not dispute the 

criminal information or initiate the waiver process.)

G4S formulated its current policy on criminal convictions over many years based 

upon job relatedness, business necessity considerations for security/safety sensitive positions, 

state licensing requirements, the Fair Credit Reporting Act, laws governing security officer 

criminal background requirements, and its past experiences with the significant adverse 

business consequences that can arise from hiring security officers who have been convicted 

of certain criminal offenses. G4S is responsible for providing and ensuring safety and 

security to the American public at large in virtually every facet of our daily lives. G4S's 

current clients include: nuclear power plants, government buildings and facilities, energy 

plants and refineries, ports, airports, railways, public transit buildings and facilities, financial 

institutions, corporate installations, residential communities, and an untold number and 

variety of private institutions. In addition, G4S provides transportation, safety and security 

services to protect America's borders, jails, detention facilities, tourism and leisure 

destinations, as well as critical disaster and emergency response functions.

Security officers are responsible for securing and protecting both persons and 

property from criminal acts. In doing their job, security officers have access to property, 

frequently function independently and without direct supervision, walk around and within the 

property (including restricted areas) they are charged with protecting, and have an air of 

authority in the area in which they are assigned. Security officers are often the first to notice, 

respond to and report criminal matters to the police. G4S's clients and the public place great 

trust in G4S to deploy security officers that have backgrounds that are in line with their 

safety/security sensitive positions. In order to meet client and public expectations, G4S's 

recruitment and screening process is one of the most thorough in the industry and seeks to 

maintain the highest standards. Clients understand and expect that when they enter a contract 

with G4S, they are receiving a security officer that has passed an extensive criminal 

background check. When those expectations are not met and a security officer with a past 

criminal conviction commits a crime, the result can be, at best, a damaged client relationship 

and financial loss to G4S, and at worst, the loss of the client's business, reputational damage

and the loss of public trust.
242 Speakers’ Statements

III. The Potential Costs for Not Screening Are Enormous

The EEOC also ignores the significant risk to G4S and other employers if they fail to

conduct background checks. The panoply of potential civil claims seeking to impose liability

upon employers for the consequences of a poorly vetted employee run the gamut from

negligence actions for hiring, retention and supervision of an employee to intentional torts of

infliction of emotional distress and breach of express or implied contract actions for

providing a safe workplace or workforce. Employers can also be found vicariously liable for

assault, battery, and false imprisonment by their employees.

The explosion of litigation against employers,1 particularly in the area of negligent

hiring and negligent retention,2 makes the EEOC’s guidelines and enforcement plan a very

difficult, no-win situation for employers. If an on-duty employee causes harm to another, and

the employer knew or should have known that the individual causing the harm had a criminal

conviction in his/her background, the courts frequently hold that the employer is liable.

Negligent hiring lawsuits not only result in potentially detrimental financial consequences

but also cause damage to the company's reputation. A trusted business reputation is critically

important to a private security company.

The increasing number of court decisions ruling in favor of plaintiffs based on

negligent hiring and retention has put mounting pressure on companies to obtain more

detailed and accurate information on prospective employees. Companies are expected to

obtain more comprehensive information on applicants by mandating that all job prospects

undergo a comprehensive background check. Despite employers’ efforts in this area, they

lose more than 70 percent of such lawsuits, and the average jury plaintiff award is more than

$1.6 million.3

 Approximately 66 percent of negligent hiring trials result in awards averaging

$600,000 in damages. The Workplace Violence Research Institute reports that the average

jury award for civil suits on behalf of the injured is $3 million.4

Indeed, even misdemeanor criminal convictions can lead to significant claims and

lawsuits. As an example, in August 2010, a G4S security officer, who had a prior

misdemeanor conviction for "disorderly conduct," was arrested after he was caught taking

pictures of a minor undressing in her residence within the gated community the security

officer was hired to protect. The security officer's disorderly conduct conviction was not a

1

 For example, private employment lawsuits against employers tripled in one decade. In January of 1999, the

Bureau of Justice Statistics published a study showing that from 1990 through 1998, employment-related civil

cases nearly tripled. Private employment-related complaints accounted for approximately 65 percent of the

overall increase in cases that flooded the U.S. District Courts in this period. Marika F.X. Litras, Civil Rights

Complaints in U.S. District Court, 1990-98, (NCJ-173427). Employment discrimination cases increased from

8,413 filings in 1990 to 23,735 in 1998. 2 See, Workplace Violence: Defending Against Negligent Hiring Litigation Requires Exercise of Due Care in

Hiring. Daily Labor Report. Michael Bologna. No. 179, Page A-7. September 16, 2003; Negligent Retention of

Employees: An Expanding Doctrine. Rosanne Lienhard. 63 Def. Counsel J. 389, 1996. 3

 Public Personnel Management, USA Today, Nov. 21, 2003. 4

 Workplace Violence: An Employer’s Guide, Steve Kaufer, CPP and Jurg W. Mattmann, CPB, at p. 5,

http://consumerdatareporting.com/pdfs/wvri%20employers%20guide.pdf
Criminal Background Checks and the EEOC’s Conviction Records Policy 243

disqualifying conviction under G4S’s policy. However, after the incident in question, it was

discovered that the "disorderly conduct" offense involved a criminal act that was similar to

the criminal act that the security officer committed while on duty. In addition to significant

negative publicity from the local media, G4S is now a defendant in a lawsuit claiming

negligent hiring. G4S has spent hundreds of thousands of dollars defending the case and is

facing trial in 2013.

Additionally, in March 2010, G4S faced significant negative publicity about its

hiring practices when it hired a security officer with a misdemeanor conviction to protect a

courthouse in Wisconsin. Again, the misdemeanor conviction was not a disqualifying

conviction when the security officer was hired. However, the fact that the security officer

had served jail time for the misdemeanor offense was nationally and negatively publicized

in the media because the public expects security officers to be law abiding persons who

have not spent time in jail.

Attached as Appendix A is a list of representative cases involving allegations of

negligent hiring and the actions of security officers. Many of these cases involve liability as

a result of failure to conduct a criminal background check.

IV. Broader Context of the EEOC’s Actions

a. The EEOC’s Restriction on Use of Criminal Background Checks

Will Have Disastrous Effects on Public Safety

According to its own enforcement guidance, issued April 25, 2012, the EEOC has

begun targeting employers who use background checks as part of their pre-employment

screening.5 Specifically, the new guidance states:

National data supports a finding that criminal record exclusions have a

disparate impact based on race and national origin. The national data provides

a basis for the Commission to investigate Title VII disparate impact charges

challenging criminal record exclusions.

The EEOC’s determination that national data now supports the Agency’s broad

investigation into any employer who uses background checks fails to acknowledge and, in

fact, ignores other data from the Department of Justice and other sources that clearly

demonstrate the importance of using background checks to support employers’ legitimate

business concerns as well as the need to protect the general public. According to the U.S.

Department of Justice, over two thirds of all convicted criminals are arrested for a new

offense and almost half are convicted of a new crime.

6

5

 The government’s own statistics

show that recidivism rates are high and recidivists are not necessarily going to commit the

same crime they committed the first time.

http://www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf

6

 Bureau of Justice Statistics Special Report: Recidivism of Prisoners Released in 1994, U.S. Department of

Justice, NCJ 193427, Patrick A. Langan, Ph.D., David J. Levin, Ph.D., June 2002, at pg 1.
244 Speakers’ Statements

The EEOC’s approach further ignores the right every employer has, as pronounced by

the U.S. Supreme Court, to separate strong candidates for employment from weak ones. 7

 In

NASA v. Nelson,

8

 the Supreme Court declared it reasonable and appropriate for the federal

government to perform background checks on federal contractor employees. The Court

stated that: “Like any employer, the Government is entitled to have its projects staffed

by reliable, law-abiding persons who will ‘efficiently and effectively’ discharge their

duties.”9

Given the “20/20 hindsight” nature of most claims (i.e. after the harm has already

occurred), the impetus and incentive for rigorous pre-hire vetting of potential members of the

workforce is clear and well supported by the case law and large verdicts against employers

who fail to properly screen using criminal background checks.

By restricting employers from utilizing neutral policies of screening individuals with

criminal conviction records, the EEOC’s guidance will result in more crimes committed at

work, more companies and individuals harmed by criminal conduct, and more negligent

hiring, retention and supervision lawsuits.10

b. The EEOC’s Strategic Enforcement Plan To Create Class Claims

From Individual Claims Encourages Investigators to Conduct Overbroad

Inquiries

The EEOC has implemented a strategic enforcement plan whereby it seeks to expand

individual claims of discrimination into class action claims.11 That plan states:

In 2006, the Commission adopted its Systemic Initiative.[23] This

Initiative makes the identification, investigation, and litigation of systemic

discrimination cases - pattern or practice, policy, and/or class cases where the

alleged discrimination has a broad impact on an industry, profession,

company, or geographic area - a top priority. The Systemic Initiative also

seeks to ensure that the EEOC has a coordinated, strategic, and effective

approach to such cases. The Initiative requires the agency to effectively use its

administrative and litigation tools - including Commissioner Charges, directed

investigations, and the strategic use of empirical data - to identify and stop

discriminatory policies and other instances of systemic discrimination.

7

 Id. at 761. 8

 131 S. Ct 746 (2011). 9

 Id. at 759-760. 10 This focus is curious considering its recent high-profile settlement, which included strong criticism by the

EEOC of an employer for not doing a criminal-background check on a janitorial supervisor. On September 2,

2010, the EEOC announced the $5.8 million settlement of its sexual harassment lawsuit against ABM

Industries, Inc. http://www.eeoc.gov//eeoc/newsroom/release/9-2-10.cfm. In that case, the employer had moved

for summary judgment. Id. In the EEOC’s response memorandum, the EEOC laid blame for the alleged

harasser’s conduct on management: “Defendant’s failed to initiate an investigation into [the harasser’s] criminal

background.” 11 http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm
Criminal Background Checks and the EEOC’s Conviction Records Policy 245

The EEOC’s guidance shows the Commission is focused on using an individual case 

for expanding claims to national prominence. The EEOC’s message to its investigators is to 

broaden the scope of their investigations to include information beyond simply redressing an 

individual’s claim and to search for justification for establishing a class claim. This not only 

dilutes the claims filed by individuals who have turned to the EEOC for specific redress of 

their individual claims, but it also puts employers on the defensive as such fishing 

expeditions are extremely costly and highly unpredictable for employers. Further, with 

Courts now deferring more to the EEOC’s discretion regarding subpoenas,12 employers are 

without an effective means of protecting themselves from rogue investigators or extensive 

investigations beyond the fair and relevant scope of the underlying complaint.

G4S finds itself in exactly this type of situation. Because one applicant, who has two 

previous convictions for theft, applied for a position as a security officer and was denied, 

G4S is now being asked to defend its use of criminal background checks in every hiring 

decision it has made over a period of decades. The EEOC’s guidance forces responsible 

employers to spend time, energy, and money defending legitimate policies and thousands of

legitimate hiring decisions rather than the one decision in question.

c. Conflict with State Regulations that Govern the Private Security Industry

Most states, with few exceptions, require a background check in order for security 

officers to be licensed to work in a particular jurisdiction. In Pennsylvania, where Mr. 

Coleman applied, the state requires that those applying as an unarmed security officer submit 

to fingerprints that will be filed with the Pennsylvania State Police Central Repository and 

that the applicant submit to a criminal background check that will be done by the Clerk of 

Courts and the District Attorney.

The EEOC, while aware of this reasonable state regulatory scheme, says that state 

and local laws and regulations are preempted by Title VII of the Civil Rights Act if they 

“purport[] to require or permit the doing of any act which would be an unlawful employment 

practice under Title VII.” Simply by complying with state and local laws, private security 

contractors are put in an untenable position.

d. Conflict with Federal Legislation

G4S is a member of and worked with the National Association of Security 

Companies (NASCO) in support of congressional passage of the Private Security Officer 

Employment Authorization Act (PSOEAA) which became law in 2004. [1]

 12 See e.g., EEOC v. Randstad, Case No. 11-1759 (4th Cir. 2012).

The enactment of 

this legislation, which broadened federally authorized access for security officer employers to 

obtain FBI criminal background checks, was a clear public policy decision by Congress in 

support of more expansive and stringent criminal background checks for security officers. As 

stated in the law, Congress found that “the American public deserves the employment of 

qualified, well-trained private security personnel as an adjunct to sworn law enforcement 

[1] 28 U.S.C. 534 (2004)
246 Speakers’ Statements

officers; and private security officers and applicants for private security officer positions 

should be thoroughly screened and trained.”

However, the EEOC, in its revised criminal background check guidance and in its 

investigation of G4S for its use of criminal background checks, is clearly seeking to restrict 

the use of criminal background checks in the private security industry --- in clear 

contravention to the actions and intent of Congress in this arena.

V. Relevant Case Law Supports G4S

There is relevant case law upholding an employer’s right to conduct criminal 

background checks as a “business necessity.” The Third Circuit Court of Appeals found that 

an employer had established the business necessity of its broad policy barring the 

employment of any person convicted of a violent crime. El v. SEPTA, 479 F.3d 232, 247 (3rd 

Cir. 2007) El, 479 F.3d at 247. In El, the plaintiff was disqualified from a paratransit driver 

position because a criminal background check revealed he had been convicted of seconddegree murder forty years prior to his application. SEPTA presented evidence that a person 

with a remote conviction involving violence had a slightly greater probability of committing 

a future crime than a person with no such conviction. Id. Based on this slightly higher risk 

and the concern for SEPTA’s passengers’ safety, the Third Circuit found that SEPTA’s 

practice accurately screened out applicants and did not constitute an unlawful disparate 

impact. Id. at 248.

VI. Conclusion

Criminal background checks draw upon the most rigorous test of the past 

performance of a prospective employee upon which an employer can rely – the proof beyond 

a reasonable doubt standard of the U.S. criminal justice system. No individual is convicted 

unless and until he or she has been found guilty – either by trial or by voluntary plea – of the 

crime revealed by a background check. Further, the conviction reflects only the crime for 

which the individual was held responsible (i.e., not for what they were arrested, charges 

dropped or reduced by prosecutors, or of which an acquittal was rendered). 

Despite this most rigorous standard for criminal convictions, the EEOC enforcement 

guidance states that “a conviction record will usually serve as sufficient evidence that a 

person engaged in particular conduct. In certain circumstances, however, there may be 

reasons for an employer not to rely on the conviction record alone when making an 

employment decision.” (Emphasis added). The EEOC is requiring that employers substitute 

its judgment for that of our criminal justice system to make individualized assessments to 

determine if the employer’s policy as applied is job related and consistent with business 

necessity. This is illogical and will lead to many more complaints against employers for 

discrimination as opposed to applying a neutral policy across the board to every applicant or 

employee. 

The EEOC enforcement guidance further states that “[a]rrest and incarceration rates 

are particularly high for African American and Hispanic men. African Americans and 
Criminal Background Checks and the EEOC’s Conviction Records Policy 247

Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. 

Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are 

expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 

for Hispanic men; and to 1 in 3 for African American men.” While this may indicate a 

problem with our criminal justice system, it is unreasonable to place the burden to rectify this 

societal problem upon employers – particularly employers who employ security officers. 

Given the burden which must be met for a conviction to occur, employer reliance upon 

convictions revealed by a criminal background check is justifiable, reasonable and less likely 

to lead to individual discrimination. 

Employment criminal background checks are an appropriate, prudent, sensible, and 

reasonable employment practice for employers in evaluating their job applicants. With regard 

to more sensitive positions, such as security officers, the appropriateness is indisputable. It is 

appropriate, logical and, indeed, critical that companies who hire security officers have the 

broadest possible access to criminal background information pertaining to its applicants and 

employees.

We cannot give guns and badges, keys and combinations, passcodes, access to servers 

containing personal and sensitive information, and our trust to those who are at a high risk of 

abusing it and to those who have such a high chance of criminal recidivism. We must not 

take such a gamble with protecting our critical infrastructure and the lives of people who 

expect and deserve our protection. 

Thank you again for the opportunity to testify on this critical issue of concern to the 

private security industry. I am happy to answer any questions that you may have.

* * *

Appendix A - Julie Payne Statement

(1) In California, a store customer was injured in an altercation with a Kmart 

security guard after trying to return an item. The customer, while being 

restrained, was injured by the security guard. The customer was awarded 

$3.8 million in damages in a lawsuit claiming negligent hiring against the 

store. Heiner v. Kmart Corp., 84 Cal. App. 4th 335 (Cal. Ct. App 2000).

(2) A security company was found liable for negligently hiring guards who 

beat a spectator. Gonzales v. Sw. Sec. & Prot

(3) A court found corporate liability for negligently hiring a security guard 

with a prior criminal record who assaulted a woman in a parking lot. The 

case was settled for $1M. 

., 665 P. 2d 810 (N.M. App. 

1983).

Kanne v. Burns Int’l Sec. Servs., Inc., Los 

Angeles County Superior Court, No. SWC 61883, 5/18/84; 28 ATLA L. 

Rep. 78.
248 Speakers’ Statements

(4) A car-rental company in Pennsylvania settled for $2.5 million a lawsuit 

seeking to hold it liable for negligent hiring and entrustment of an 

intoxicated security guard. The guard had an on-duty traffic accident in a 

company car in which he and another motorist were killed. Butler v. Hertz 

Corp., Pa., Philadelphia County Court of Common Pleas, Apr. Term, 

1990, No. 1691, Feb. 11, 1991, reported in 34 ATLA L. Rep. 247 (Sept. 

1991).

(5) An armored-car company settled a negligent hiring, training, and 

supervision lawsuit for $12 million when it was alleged that it did not 

adequately investigate an employee's past work record or provide adequate 

driving training. Quinones v. Roe, Cal., Los Angeles County Superior Ct., 

No. BC 076751, Mar. 23, 1994, 37 ATLA L. Rep. No. 10, p. 376 (Dec. 

1994).

(6) A store was sued for negligent supervising and retention of a security 

guard who allegedly had sexual intercourse with a 15-year-old female 

shoplifting suspect in exchange for letting her go. Hoke v. May Dep’t 

Stores Co., 133 Or. App. 410, 891 P. 2d 686 (1995).

(7) A store customer detained by a security guard at a department store as a 

suspected shoplifter and injured while being restrained was awarded $10 

million in damages in a lawsuit against the store claiming negligent hiring.

Porter v. Proffitt’s, Inc., Tenn., Bradley County Cir. Ct., No. V-94-676, Sept. 

19, 1996, reported in 40 ATLA L. Rptr. No. 2, P. 72 (March 1997).

(8) A convenience store was held liable for negligently hiring a security guard 

with a criminal record after the guard shot a customer. The court explained 

that the foreseeability that some harm might come to a customer is greater 

when the employee is armed and charged with carrying out a hazardous 

job that requires skill or experience. Estate of Arrington v. Fields, 578 

S.W.2d 173, 175-76 (Tex. App. 1979, writ ref'd n.r.e.)

(9) Evidence of prior convictions ruled admissible to show that an employer 

should have known that a criminal tortious action was more likely to 

happen. In this case, a security guard had a previous conviction for 

impersonating a police officer, and then was overly aggressive with a 

customer he thought was a shoplifter. Panas v. Harakis, 529 A.2d 976 

(N.H. 1987).

(10) In 2008, at a hotel in Panama City, Florida, a hotel security guard raped an 

18 year old girl staying at the hotel. The security guard forced the girl into 

an unoccupied room which he accessed with his pass key. After the girl 

fought back, the guard threw her off the balcony from the sixth floor. A 

subsequent criminal background check revealed that the guard had 

previously been convicted of burglary and theft. See “Suspect in Sexual 
Criminal Background Checks and the EEOC’s Conviction Records Policy 249

Assault of UA Spring Breaker Now in Police Custody” March 19, 2008, 

Alabama 13.com.

(11) In 2009 in Ohio, a security guard who was on probation for a felony drug 

offense was hired to guard a hospital pharmacy where he was arrested for 

trying to steal drugs. See “New Criminal background checks sought by 

Ohio’s Homeland Security chief” November 16, 2010, newsnet5.com.

On the other hand, the courts have found when a security guard employer 

did conduct a criminal background that was sufficient, there is no liability.

(12) In Honohan’s v. Martin’s Food of the South Burlington, Inc., 255 A.D. 2d 

627 (3rd Dept. 1998), a security guard sexually molested the plaintiff after 

detaining her for shoplifting. The employer was exonerated since it had 

conducted a thorough background check and checked prior references.

(13) In B.B. Walker Co. v. Burns Intern. Sec., 424 S.E.2d 172 (N.C. App. 

1993), a security guard company was found not liable to manufacturing 

company for thefts allegedly committed by guards they supplied under 

contract because there was nothing in guards' backgrounds which should 

have put security firm on notice that they were unfit for the job. 

***
Speakers’ Statements 250

Jeffrey Leigh Sedgwick

Comments on the topic, “Assessing the Impact of Criminal Background Checks and the 

Equal Employment Opportunity Commission’s Conviction Records Policy on the 

Employment of Black and Hispanic Workers,” before the U.S. Commission on Civil 

Rights

By

Jeffrey Leigh Sedgwick, Ph.D.

Managing Partner & Co-founder

Keswick Advisors, LLC

7 December 2012

On April 24 of this year, the Equal Employment Opportunity Commission (EEOC) issued its 

“Enforcement Guidance on the Consideration of Arrest and Conviction Records in 

Employment Decisions Under Title VII of the Civil Rights Act of 1964.” This Enforcement 

Guidance builds on longstanding court decisions and policy documents that were issued over 

twenty years ago. In light of employers’ increased access to criminal history information, 

case law analyzing Title VII requirements for criminal record exclusions, and other 

developments, the Commission updated and consolidated in this document all of its prior 

policy statements about Title VII and the use of criminal records in employment decisions.

Prior to issuing its updated Enforcement Guidance, the EEOC held two public hearings: 

Employment Discrimination Faced by Individuals with Arrest and Conviction Records on 20 

November 2008; and Arrest and Conviction Records as a Barrier to Employment on 26 July 

2011. At each of these meetings, selected individuals representing parts of the research, legal 

and advocacy communities offered statements concerning the potential impact of criminal 

histories on the employment prospects of job applicants.

According to many advocates and researchers, the increased interest in and attention to 

criminal history background checks is attributable to the increasing number of individuals 

with criminal histories1 and to the increasing ease of access to such histories by employers 

concerned about negligent hiring liability.2 This presumes that the increased supply of 

criminal histories drives demand for their use. However, there are significant factors 

independently creating employer demand for criminal history background checks including:

• The reality of recidivism.

 1 See for example, Michelle Natividad Rodriguez and Maurice Emsellem, 65 Million “NEED NOT APPLY”: 

The Case for Reforming Criminal Background Checks for Employment. New York: The National Employment 

Law Project, March 2011.

2 See for example Alfred Blumstein and Kiminori Nakamura, “Extension of Current Estimates of Redemption 

Times: Robustness Testing, Out-of-State Arrests, and Racial Differences.” Final Report Submitted to the 

National Institute of Justice Grant No. 2009-IJ-CX-0008: October 2012. Pp. 1, 4-5.
Criminal Background Checks and the EEOC’s Conviction Records Policy 251

• The prevalence of violent and/or theft-related offenses among inmates.

• OSHA rules that require employers to provide a safe workplace.

• Federal, state and local laws and licensing requirements that restrict individuals with

certain convictions from employment in selected occupations.

• State laws that put employers at risk for hiring mistakes.

• Employer desire to protect business assets.

In the brief summary that follows, I will make four points: (a) that the EEOC in its Guidance

and supporting documentation misrepresents contemporary social science research on the

disparate impact of criminal justice policies resulting in criminal history records ; (b) that the

EEOC misunderstands the difference between correlation and causation in social science

research; (c) that the EEOC in its Guidance and supporting documentation misrepresents

contemporary social science research on employer behavior and predicting criminal

behavior; and (d) that the revised Guidance issued by the EEOC offers no “safe harbor” for

employers even if they follow scrupulously the EEOC’s own list of Employer Best Practices.

A. Social Science Research and the Disparate Impact of Criminal Justice Policy

Beginning in the Introduction to its updated Guidance, the EEOC notes that there has been a

significant increase in the number of Americans who have had contact with the criminal

justice system and, concomitantly, a major increase in the number of people with criminal

records in the working-age population – indicative, perhaps, of a growing crisis or gathering

storm.3

 The EEOC citations included to support this observation of a growing crisis are

meant to emphasize the rapid growth in convictions and correctional populations (suggesting,

perhaps, a “hyperactive” criminal justice system sweeping increasing numbers of citizens

into its net). However, the EEOC ignores the fact that the average annual increase in the

population of adults under correctional supervision has been declining since 1980 and has,

indeed, been negative for the past two years.4

The fact that smaller cohorts are being admitted reflects declining rates for imprisonable

crimes since the peak in 1992, while the larger release cohorts reflect the increasing violent

crime rates between 1960 and 1992. According to the FBI’s Uniform Crime Report, between

1960 and 1992, the number of violent crimes in the United States increased nearly sevenfold,

from approximately 288,000 to more than 1.9 million, and the violent crime rate increased

nearly fivefold from 160.9 to 757.7 per 100,000 population. According to FBI Uniform

Crime Report data, the rate of all seven index offenses (homicide, rape, robbery, aggravated

 This means that even were we to do nothing in

terms of changes in incarceration policy over the next several years, the prison population

would fall as smaller and smaller cohorts are convicted and admitted to prison and larger

cohorts are released.

3

 Equal Employment Opportunity Commission, “Enforcement Guidance on the Consideration of Arrest and

Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq.” No. 915-002, 25 April 2012, 3. 4

 Department of Justice, Correctional Population in the United States, 2010. (Washington, DC: Bureau of

Justice Statistics, 2011), 1 Figure 1, http:// http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf and Franklin E.

Zimring, The Great American Crime Decline. (New York: Oxford University Press, 2007), 3-8.
252 Speakers’ Statements

assault, burglary, larceny and auto theft) declined significantly over the 1990s, with the

aggregate declines ranging from 23% to 44%. For five of the seven offenses (homicide, rape,

robbery, burglary and auto theft), the declines are of a similar magnitude: about 40%. Two

crimes (aggravated assault and larceny) dropped by a lesser amount: about 23% to 24%.

If we look at National Crime Victimization Survey (NCVS) data, the crime declines estimated

from the household survey are equal to or greater than the FBI/police statistics in all six

crime categories (the NCVS does not measure homicide), with the survey showing much

larger declines in larceny, assault and rape. The victim survey not only confirms the trends

found in the police data, but also moves the larceny and assault declines much closer to the

average declines for the other index crimes than do the police statistics. The violent

victimization rate in the United States has fallen 67% since its peak in 1994 and now equals

the lowest rate measured in the thirty-six year history of the NCVS. In short, the trends in

arrests, convictions, and incarcerations are now not indicative of a growing crisis.

The EEOC Guidance quickly shifts from emphasizing the growth in the number of those with

criminal histories to emphasizing the disparate impact of such records: “Arrest and

incarceration rates are particularly high for African American and Hispanic men. African

Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the

general population.”5

 Here the EEOC argument is misleading and its citation6

Michael Hindelang compared the demographic characteristics of persons the police arrested

with the characteristics of offenders crime victims reported. The results showed a very

consistent relationship between the racial distribution reported in police arrest statistics and

that reported by victims of robbery, rape, and assault (where there was direct contact with the

offender) when they were interviewed in the 1974 Victimization Survey.

 irrelevant

since both suggest that the appropriate denominator for calculating arrest and incarceration

rates is a protected groups’ proportion of the general population. Since offenders are not a

protected class under Title VII of the Civil Rights Act, EEOC has no jurisdiction in

employment decisions pertaining to offenders unless it can be shown that their criminal

record itself is the result of unlawful discrimination. But on this precise point, EEOC

overlooks a very large body of social science research dating back a number of years.

7

 Patrick Langan’s

study8, comparing the race composition of crime victims’ recounting of the identity of their

offender to the race composition of prison admissions confirms that of Alfred Blumstein9

5

 EEOC, “Enforcement Guidance,” 3.

who, in a pioneering study using police arrest statistics to investigate one-day prison

populations, also concluded that differential involvement, not racial discrimination, accounts

6

 PEW CTR. ON THE STATES, COLLATERAL COSTS: INCARCERATION’S EFFECT ON ECONOMIC

MOBILITY 6 (2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653 at 8,

Figure 2. 7

 Michael Hindelang, “Race and Involvement in Common Law Personal Crimes,” American Sociological

Review 43 (1978), 93- 109; and Michael J. Hindelang, Analysis of Victimization Survey Results from the Eight

Impact Cities. (Washington : Dept. of Justice, Law Enforcement Assistance Administration, 1976) 8

 Patrick A. Langan, “Racism on Trial,” The Journal of Criminal Law and Criminology 76 (Autumn 1985) 666-

683.

9

 Alfred Blumstein, “On the Racial Disproportionality of United States' Prison Populations,” The Journal of

Criminal Law and Criminology 73 (Autumn, 1982), 1259-1281.
Criminal Background Checks and the EEOC’s Conviction Records Policy 253

for 80% of the disproportionality between black and white incarceration rates in the United 

States. And Robert Sampson and Janet Lauritsen10

Somewhat later in its updated Guidance, the EEOC returned to this theme of racially-biased 

criminal justice policy in observing that “[i]n 2008, Hispanics were arrested for federal drug 

charges at a rate of approximately three times their proportion of the general population.

Moreover, African Americans and Hispanics were more likely than Whites to be arrested, 

convicted, or sentenced for drug offenses even though their rate of drug use is similar to the 

rate of drug use for Whites.”

reviewed the massive literature on 

charging and sentencing. They concluded that “large racial differences in criminal 

offending,” not racism, explained why more blacks were in prison proportionately than 

whites and for longer terms.

11

The focus on dealing is reasonable since some illicit drug markets are violent, particularly 

those organized around a physical place as opposed to virtual markets embedded within 

social networks. Business arrangements involving illegal drug distribution cannot be 

enforced by law. Thus we should expect drug dealers to be more commonly and more 

heavily armed than entrepreneurs and employees in other lines of work, and indeed they 

seem to be better armed than other perpetrators of deadly violence. While the presence of 

guns deters violent encounters, it tends to raise the lethality of incidents that do take place.

Pointing to drug usage statistics is misleading in this context 

since it is dealing rather than usage that drives arrests, convictions and incarcerations 

(indeed, many convictions for use are the result of plea bargaining the arrest charge down 

from dealing).

12

Large areas of flagrant drug dealing – either in the open or in dedicated locations such as 

crack houses – constitute serious problems for the neighborhoods where they exist. Violence 

and theft by and against both users and dealers can make flagrant market areas into hot spots 

for non-drug crime. One reason that urban police continue to pursue the Sisyphean task of 

locking up drug dealers one by one, only to have them replaced by others, is that the 

neighbors demand it. The same community leadership that criticizes the police for overly 

aggressive and impolite enforcement activity often also complains about the failure of the 

police to stop a set of illegal activities that stand out in plain view.

 10 Robert J. Sampson and Janet L. Lauritsen, “Racial and Ethnic Disparities in Crime and Criminal Justice in the 

United States, Crime and Justice 21 (1997), 311-374. 11 EEOC, “Enforcement Guidance,” 9. 12 On the importance of differences between drug markets and their intersection with violence, see David A. 

Boyum, Jonathan P. Caulkins & Mark A. R. Kleiman, “Drugs, Crime and Public Policy,” in Crime and Public 

Policy. Ed. James Q. Wilson and Joan Petersilia. (New York: Oxford University Press, 2011), 368-410; Paul J. 

Goldstein and Henry H. Browstein, Drug Related Crime Analysis: Homicide. Report to the National Institute of 

Justice Drugs, Alcohol, and Crime Program. (Washington, DC: United States Department of Justice, July 

1987); Alfred Blumstein and Dan Cork, “Linking Gun Availability to Youth Gun Violence,” Law and 

Contemporary Problems59 (1996), 5-24; Joseph F. Sheley and James D. Wright, Gun Acquisition and 

Possession in Selected Juvenile Samples. National Institute of Justice, Office of Juvenile Justice and 

Delinquency Prevention, Research in Brief. (Washington, DC: U.S. Department of Justice, December 1993);

and David M. Kennedy, “Can We Keep Guns Away from Kids?” The American Prospect 5 (1994), 74-80.
254 Speakers’ Statements

B. Correlation and Causation in Social Science Research

Much of the testimony offered to the Commission in its two hearings on criminal history 

background checks asserted, strongly suggested or implied that the current level of 

unemployment in the Black community constitutes a threat to public safety. The unspoken 

assumption is that the lack of legitimate earning opportunities leads to higher crime rates. But 

the relationship between unemployment and criminal conduct is not one of simple cause and 

effect. This is demonstrated by several facts commonly known in the social science 

community, such as:

• Two-thirds of inmates in State prisons were employed during the month before they 

were arrested for their current offense; over half were employed full time.13

• From 1979 to 1997, the property and violent crime rates (adjusted for changes in 

demographic characteristics) increased by 21% and 35%, respectively, in the United 

States despite no change in the long term unemployment rate.14 and 

• Decreasing wage trends for low skill workers account for over 50% of the increase in 

both the property and violent crime indices during the same period. A sustained longterm decrease in crime rates thus depends on whether the wages of less skilled men 

improve.

15

Successful reentry to legitimate society is shaped by factors that have nothing to do with 

employment but may, in fact, affect employment prospects as well as successful desistance 

from crime.16 These factors include not only the individual’s characteristics, but also 

offending and substance abuse histories, family relationships, community contexts, and State 

policies offering supportive re-entry services. Discouraging the use of background checks 

will not by itself enhance re-integration into society, especially if it diverts attention from the 

provision of adequate supportive re-entry services. It will certainly, however, expose 

employers and the public to the harm of re-offense due to factors that have nothing to do with 

the regular presence of a paycheck. The following characteristics of state inmates make clear 

that their problems upon re-entry extend far beyond issues related to background checks.

 13 Department of Justice, Survey of State Prison Inmates, 1991. (Washington, DC: Bureau of Justice Statistics, 

1993) 3. See also, Department of Justice, Mental Health and Treatment of Inmates and Probationers. 

(Washington, DC: Bureau of Justice Statistics, 1991) 14 Eric D. Gould et al, “Crime Rates and Local Labor Market Opportunities in the United States: 1979-1997,” 

The Review of Economics and Statistics 84, no. 1 (2002): 57-8. In this context, it is interesting to note that 

according to the FBI’s Preliminary Annual Uniform Crime Report on 2010, property and violent crime rates in 

the United States have fallen each year since 2006, despite rising unemployment and the large number of 

inmates released back into the community annually during that same period.

15 Ibid., 58. 16 Christy A. Visher and Jeremy Travis, “Transitions from Prison to Community: Understanding Individual 

Pathways,” Annual Review of Sociology 29 (2003): 91.
Criminal Background Checks and the EEOC’s Conviction Records Policy 255

Consider the following facts17:

• Over 60% of inmates had been incarcerated in the past. A Department of Justice 

study of 272,111 inmates released from prison in 1994 found that they had 

accumulated 4.1 million arrest charges before their most recent imprisonment and 

another 744,000 charges within 3 years of release.18 This is an average of 17.9

charges each. The number of times a prisoner has been arrested in the past is a good 

predictor of whether that prisoner will continue to commit crimes after being 

released.19

• Substance abuse is a significant contributing factor to the likelihood of incarceration.

Thirty-one percent of inmates committed their offense under the influence of drugs, 

and 17% committed their offense to get money for drugs. Thirty-two percent of 

inmates committed their offense under the influence of alcohol having consumed on 

average the equivalent of three six-packs of beer or two quarts of wine. Half of these 

had been drinking for six hours or more before their offense. Studies of released 

prisoners report that their success or failure to confront their substance abuse problem 

often emerges as a primary factor in their post-prison adjustment.20

• The presence of stable marital and family relationships greatly reduces the likelihood 

that an offender will re-offend. Fifty-five percent of inmates had never married, while 

27% were widowed, divorced or separated; yet 43% of female inmates and 32% of 

male inmates had 2 or more children under age 18. Although the day-to-day role of 

husband or parent and reintegration into a family are not social roles that ex-offenders 

(particularly men) necessarily adopt immediately upon release, acceptance of that role 

is highly significant in the transformation toward law-abiding citizen after release.

Indeed, interpersonal conflict with heterosexual partners is mentioned by recidivists 

as a common problem leading to failure second only to problems involving substance 

abuse. In an inmate’s early life, it is well-known that the absence of such stable 

relationships can serve as a harbinger of trouble to come.21 Most inmates did not live 

with both parents while growing up; over 25% had parents who abused drugs or 

alcohol; and 37% had an immediate family member with a jail or prison record.

• Lack of educational advancement leads to enhanced risks of incarceration. Thirtyfour percent of inmates had completed high school while another quarter had gotten a 

general equivalency degree (GED). Limited education often translates into poor job 

skills, creating diminished prospects for stable employment and decent wages upon 

release.

 17 Survey of State Prison Inmates, 1991. 18 Department of Justice, Recidivism of Prisoners Released in 1994. (Washington, DC: Bureau of Justice 

Statistics, 2002) 1.

19 Visher and Travis, p. 95. 20 Ibid. 21 Visher and Travis, p. 99.
256 Speakers’ Statements

The EEOC’s confusion between correlation with causation appears in the Guidance on page 

8 where the following quote appears: “A covered employer is liable for violating Title VII 

when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect 

of disproportionately screening out a Title VII-protected group and the employer fails to 

demonstrate that the policy or practice is job related for the position in question and 

consistent with business necessity.” The Guidance then cites Griggs v. Duke Power 

Company22

In the interim since Griggs, social scientists have generated a substantial body of 

research designed to help employers comply with the mandates of the doctrine. This 

evidence has undermined two key elements of Griggs that have informed the 

application of the disparate impact rule more generally. First, Griggs and its progeny 

rest on the implicit assumption that fair and valid staffing practices will result in 

workers from each race being hired or promoted in rough proportion to their numbers 

in the background population or in an otherwise appropriately defined pool of 

candidates. The so-called four-fifths rule, under which an employer is presumptively 

liable if the rate of hiring for minority workers is less than 80 percent of the rate for 

the majority white population, reflects this assumption. Second, the Court in Griggs

noted the absence of evidence that the screening criteria in that case--a high school 

diploma and scores on a "professionally prepared aptitude test"--were related to 

subsequent performance of the service jobs at issue, and expressed doubt about the 

existence of such a relationship.

to support this position. However, recent scholarship has called into question the 

viability of the Griggs reasoning. A recent law review article is worth quoting at length here:

Social science research casts doubt on both of these aspects of Griggs. First, research 

in industrial and organizational psychology (IOP) has repeatedly documented that, 

despite their imperfections, tests and criteria such as those at issue in Griggs (which 

are heavily "g"-loaded and thus dependent on cognitive ability) remain the best 

predictors of performance for jobs at all levels of complexity. Second, work in 

psychometrics, educational demography, and labor economics indicates that blacks, 

and to a lesser extent Hispanics, currently lag behind whites both in cognitive ability 

test performance and in the skills needed for success on the job. These gaps are 

reflected in lower scores on the types of g-loaded job screens that best predict job 

success.

The combination of well-documented racial differences in cognitive ability and the 

consistent link between ability and job performance generates a pattern that experts 

term the "validity-diversity tradeoff": the most effective job selection criteria 

consistently generate the smallest number of minority hires. Indeed, the evidence 

indicates that most valid screening devices will have a significant adverse impact on 

blacks and will also violate the four-fifths rule under the law of disparate impact.

In sum, the IOP literature demonstrates that the empirical and demographic premises 

behind the disparate impact rule do not match reality and have turned out to be myths.

 22 401 U.S. 424, 431–32 (1971).
Criminal Background Checks and the EEOC’s Conviction Records Policy 257

As a consequence, most legitimate job selection practices, including those that predict 

productivity better than alternatives, will routinely trigger liability under the current 

rule.

Although the Supreme Court in Griggs and subsequent cases has repeatedly stated 

that disparate impact doctrine is consistent with a rigorously competitive meritocracy, 

employers seeking to maintain such a meritocracy among a diverse population will 

run a high risk of being sued for violations of the rule. Such lawsuits will put 

employers to the onerous, uncertain, and sometimes impossible task of justifying their 

job selection practices. This may result in unwarranted liability or induce undesirable, 

self-protective strategies. Even in the absence of those consequences, a proper 

application of the doctrine is unlikely to change the racial composition of the 

workplace or to increase demographic diversity. The best explanation for current 

workforce imbalances is the existence of real average group differences in 

knowledge, skills, and abilities. These human capital disparities, and not the use of 

non-merit-related selection or the erection of arbitrary barriers, best explain observed 

employment patterns. And given the present magnitude of skill differences and the 

shortage of qualified minority workers, the correct application of the disparate impact 

rule will not increase workforce diversity and could well make some jobs less 

diverse.23

The EEOC Guidance also ignores recent research and court decisions on the use of social 

framework analysis (e.g. disparate impact analysis) in arguing discrimination cases. For

example, in discussing determining the disparate impact of policies or practices that screen 

individuals based on records of criminal conduct (page 9), the Guidance notes that “African 

Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in 

the general population. Based on national incarceration data, the U.S. Department of Justice 

estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) is 

expected to go to prison at some point during his lifetime, assuming that current incarceration 

rates remain unchanged. This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African 

American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). Based on a stateby-state examination of incarceration rates in 2005, African Americans were incarcerated at a 

rate 5.6 times higher than Whites, and 7 states had a Black-to-White ratio of incarceration 

that was 10 to1. In 2010, Black men had an imprisonment rate that was nearly 7 times higher 

than White men and almost 3 times higher than Hispanic men.”

This establishes a framework for analysis of employment screens that makes consideration of 

incarceration inherently discriminatory (unless the employer can conclusively demonstrate 

that the policy or practice is job related for the position in question and consistent with 

business necessity – more on that in a moment!). Yet this use of social frameworks is far 

from uncontroversial or uncontested. Consider the following:

Since it was first introduced in court by Louis Brandeis over a century ago, evidence 

drawn from social science research has played an important role in many forms of 

 23 Wax, Amy L. "Disparate Impact Realism," William and Mary Law Review (November 2011), 621-711.
258 Speakers’ Statements

litigation. Perhaps the most prominent current use of social science evidence occurs 

in employment discrimination class actions, where the plaintiffs often rely on the 

testimony of an expert to identify factors within the defendant organization that social 

science studies suggest could pose a common risk of harm to all class members. The 

prototypical example is found in Dukes v. Wal-Mart, a gender discrimination class 

action involving over 1.5 million women, in which a sociology expert reviewed the 

case record on Wal-Mart‘s employment practices ―in light of what social science 

research shows to be factors that create and sustain bias and those that minimize bias 

and concluded that Wal-Mart‘s practices contribute to disparities between men and 

women in their compensation and career trajectories at the company.

The approach the expert used in the Dukes case has come to be known as social 

framework analysis - so called because an expert uses social science research as a 

framework for analyzing the facts of a particular case. In this approach, the expert 

uses her judgment rather than traditional empirical methods to link social science 

propositions to a particular case. For instance, the expert in Dukes conducted no 

observational, statistical or experimental tests to determine that any particular 

employment practice of Wal-Mart actually contributed to any sex disparities in pay; 

he simply reviewed discovery materials and judged Wal-Mart‘s practices to contain 

features that social science studies suggest can be associated with intergroup bias.

This method has been developed by experts exclusively for use in litigation. Or, as 

the expert for the Dukes plaintiffs testified in a subsequent case, social framework 

analysis is a legal term and not a scientific term. It‘s a label that‘s been applied to 

what social scientists do when they come into a litigation context. Issues of causality 

in the social sciences have a long and rich methodological tradition that has nothing 

to do with social framework analysis.

In stark contrast to those experts who engage in conjectural social framework 

analysis, other experts do use traditional social scientific techniques to assess 

conditions directly relevant to the case at hand. For instance, a psychologist may 

conduct an experiment to determine whether a photo lineup suggested the defendant 

as the perpetrator, or an economist may estimate the impact of alleged monopolist 

practices on consumer prices using econometric analyses of market data. In these 

instances, the expert applies scientific principles and methods to case-specific data in 

the same way that the expert would use scientific principles and methods to analyze 

data outside the litigation context. When social scientific principles and methods are 

used to develop opinions about the parties, practices, or behaviors involved in a 

particular case, [we refer] to such evidence as social facts.

We conclude that social fact studies are feasible for both plaintiffs and defendants, 

with or without special access to the parties involved in a case, and provide much 
Criminal Background Checks and the EEOC’s Conviction Records Policy 259

sounder conclusions about the relevance of social science to a litigated case than does

social framework analysis.24

Significantly, in Dukes v. Wal-Mart the Supreme Court overturned the Ninth Circuit Court of

Appeals and found for the Defendant, Wal-Mart, citing the authors of the above passage.25

C. Misuse/misunderstanding of Contemporary Social Science Research on Employer

Behavior and Predicting Criminal Behavior

At the very least, this indicates that the Supreme Court does not look favorably on challenges

to neutral employment policies and/or practices that are based on non-case specific

invocations of social science theories of disparate impact.

Social Science research is often complex and presented in specialized professional jargon

that makes it challenging for the layperson to understand. However, it is disconcerting to see

misuse or misrepresentation of such research in a government document. On page 6 of the

Guidance, for example, we find the following statement: “there is Title VII disparate

treatment liability where the evidence shows that a covered employer rejected an African

American applicant based on his criminal record but hired a similarly situated White

applicant with a comparable criminal record.” The statement is supported by a citation to a

peer-reviewed and published social science research study.26 The study cited makes the point

that race continues to play a dominant role in shaping employment opportunities, equal to or

greater than the impact of a criminal record [emphasis added] producing a result where

whites with criminal records received more favorable treatment (17%) than blacks without

criminal records (14%).27

However, the EEOC failed to disclose what it knew to be true about disparate treatment

versus disparate impact in this passage since the author of the study in question testified

before the Commission [EEOC] in November 2008 on a then-forthcoming study that showed

a rather different result.

 This alone would suggest that the employment difficulties faced by

black ex-offenders will not be materially improved simply by prohibiting use of criminal

history background checks.

28

24 Gregory Mitchell, Laurens Walker, and John Monahan, “Beyond Context: Social Facts as Case-Specific

Evidence.” Public Law and Legal Theory Research Paper Series No. 2010-14 (University of Virginia School of

Law: March 2010),

 Pager’s research demonstrated a large negative effect of race in the

initial stages of selection prior to knowledge of criminal history. To pull apart the effect of

race from criminal background, Pager’s research design involved matched pairs of job

applicants for entry-level, low paying jobs in New York City. The only difference between

http://ssrn.com/abstract=1564724. See also John Monahan, Laurens Walker & Gregory

Mitchell, The Limits of Social Framework Evidence, 8 LAW, PROBABILITY & RISK 307, 311-14 (2009). 25 John Monahan, Laurens Walker & Gregory Mitchell, Contextual Evidence of Gender Discrimination: The

Ascendance of “Social Frameworks,” 94 VA L. REV. 1705, 1742-48 (2008). 26 Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 958, Figure 6 (2003),

www.princeton.edu/~pager/pager_ajs.pdf. 27 Where favorable treatment is defined as being offered a job interview after submission of a written job

application.

28 Devah Pager, Bruce Western and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing

Young Black and White Men with Criminal Records,” The Annals of the American Academy of Political and

Social Science (May 2009) 623: 195-213.
260 Speakers’ Statements

the members of the pairs was the indication on one resume of having been arrested, convicted 

and incarcerated for drug possession with intent to distribute. Two pairs of applicants, one 

white and one black, were sent in response to 250 job advertisements randomly selected from 

the classified sections of four newspapers and Craigslist.

Black applicants were less often invited to interview for jobs, thereby providing fewer 

opportunities to establish rapport with the employer. However, the sequencing of events 

involved in employer decision-making is important in this study. Pager noted that employers 

did not know of the presence or absence of a criminal record at the time they made the 

decision whether or not to meet face-to-face with the job applicant for an interview. Yet 

black applicants were offered interview opportunities roughly two-thirds as often as white 

applicants, again suggesting that race is a larger factor in obtaining an interview and 

subsequent job offer than presence or absence of a criminal history. Given the importance of 

an interview in establishing rapport between the employer and the job applicant, this initial 

decision whether or not to interview is crucial; and yet it is not affected by the presence or 

absence of a criminal record. Indeed, Pager conceded that “the effect of a criminal record 

has no discernible impact on the likelihood of interaction [i.e. interview].”29

Equally important is the fact that once an interview is granted, there is no statistically 

significant difference between blacks and whites whether the employer expresses sympathy 

with an applicant’s criminal background, expresses disapproval of it, or gives an ambiguous 

response. Thus it is hard to see how the criminal record plays an independent role in 

burdening a black job applicant more than a white job applicant. The answer may lie in a 

number of the anecdotes Pager offered, however. She presented several cases where 

employers overcome whatever qualms they may have about hiring an ex-offender based on 

“ethnic solidarity.” But this would suggest that the differential outcome in hiring outcomes 

for white and black applicants with a criminal record may be the product of the paucity of

black employers capable of feeling “ethnic solidarity” with black applicants having a 

criminal record. This interpretation is supported by the fact that there is no statistically 

significant difference in the likelihood of a positive response to a job application [i.e., a 

hiring offer] between blacks and whites for employers either sympathetic to applicants with a 

criminal history or hostile to such applicants. The entire difference in positive hiring 

outcomes, by Pager’s own data, is attributable to employers who grant an interview during 

which they express no opinion on an applicant’s criminal history or express an ambiguous 

opinion, thus giving the applicant no opportunity to address employer qualms or to offer 

mitigating or offsetting personal qualities.

In sum, the EEOC Guidance placing limits on the use of criminal history background checks 

as a means of reducing discrimination against a class protected under Title VII of the Civil 

Rights Act of 1964 seems to miss the larger problem, overt racism in hiring facilitated by the 

paucity of minority hiring officials, and focuses too narrowly on the lesser problem of 

disparate incidence of criminal histories.

 29 Ibid., p. 201.
Criminal Background Checks and the EEOC’s Conviction Records Policy 261

In section A. above, I reviewed the way in which the EEOC Guidance seeks to establish that

any use of criminal history background checks in an employment setting has a disparate

impact on classes protected by Title VII of the Civil Rights Act of 1964 and is thus suspect.

The Guidance does allow that there may be limited circumstances under which background

checks may be permissible; these fall into two categories: employers are subject to federal

statutory and/or regulatory requirements that prohibit individuals with certain criminal

records from holding particular positions or engaging in certain occupations30

In its 1975 ruling in the case of Green v. Missouri Pacific Railroad, the Eight Circuit Court

of Appeals identified three factors (the “Green factors”) that are relevant to assessing

whether an exclusion is job related for the position in question and consistent with business

necessity: the nature and gravity of the offense or conduct; the time that has passed since the

offense or conduct and/or completion of the sentence; and the nature of the job held or

sought. The Guidance makes reference to four studies on “redemption” or the point in time

during which a released offender has avoided further contact with the criminal justice system

that renders his or her criminal record essentially useless in predicting the risk of

reoffending.

; or the

employer demonstrates that the criminal record screening policy or practice is job related for

the positions in question and consistent with business necessity. According to the EEOC, to

establish that a criminal conduct exclusion that has a disparate impact is job related and

consistent with business necessity under Title VII, the employer needs to show that the

policy operates to effectively link specific criminal conduct, and its dangers, with the risks

inherent in the duties of a particular position.

31 It is striking that only one of the four studies cited by the EEOC in this context

uses national conviction data rather than arrest data (which the EEOC itself discounts as

unreliable and insufficient as evidence of guilt. Cf. section V.B.2 of the Guidance) in

estimating the optimal exclusion period. And this one study (Soothill &Francis) is based on

data from England and Wales. But England and Wales have a considerably different mix of

criminal offending than does the United States, calling into question whether an optimal

period of exclusion calculated on their data is appropriate for use in the United States where

violent crime rates are significantly higher and property crime rates (especially burglary)

significantly lower.32

30 It should be noted that according to current estimates of the Department of Justice-funded National Study on

the Collateral Consequences of Criminal Convictions, there are over 38,000 federal, state and local statutes that

impose collateral consequences on individuals convicted of crimes including employment and occupational

licensing exclusions. (See http://isrweb.isr.temple.edu/projects/accproject) 31 Keith Soothill & Brian Francis, “When do Ex-Offenders Become Like Non-Offenders?”, 48 Howard Journal

of Criminal Justice, 373, 380–81 (2009); Alfred Blumstein & Kiminori Nakamura, “Redemption in the

Presence of Widespread Criminal Background Checks,” 47 Criminology 327 (2009); Megan C. Kurlychek,

Robert Brame & Shawn D. Bushway, “Enduring Risk? Old Criminal Records and Predictions of Future

Criminal Involvement,” 53 Crime & Delinquency 64 (2007); and Megan C. Kurlychek et al., “Scarlet Letters

and Recidivism: Does an Old Criminal Record Predict Future Offending?”, 5 Criminology & Public Policy 483

(2006).

32 See James P. Lynch and William Alex Pridemore, “Crime In International Perspective,” in Crime and Public

Policy. Ed. James Q. Wilson and Joan Petersilia. (New York: Oxford University Press, 2011), 5-52.
262 Speakers’ Statements

The main points that I would make about these “redemption” studies are as follows:

• Individuals with a prior arrest or juvenile contact with police always pose a risk of 

arrest that is statistically significantly higher than those without prior police contact 

or arrest. Bushway et al estimates that an individual with a prior arrest at age 18 and 

no offenses for the following seven years is twice as likely to be arrested within the 

next four months as an individual with no prior arrests. If we estimate the risk of 

rearrest over the next two years (ages 25 and 26), then the ex-arrestee is five and onehalf times as likely to be arrested.

• The risk of recidivism varies by age and crime at the time of first arrest; it also varies 

by the birth year of the offender (due to variations in crime rates over time).

Consequently, there is no single estimate of time “clean” or “straight” that applies 

to all ex-offenders specifying when their risk of re-offending is no greater than the 

general population.

• These research articles note that the determination of time “clean” or “straight” that 

renders an ex-offender employable depends on specific attributes of the employer or 

job. And none offers any helpful insight on these attributes.

It is most unfortunate that, despite the above, these articles have been misinterpreted and 

used to claim, quite prematurely, that criminal records become “stale” and useless as guides 

to risk assessment after a very short time – as little as three to seven years. Blumstein and 

Nakamura conclude their article with a list of issues still to be addressed, underlining the 

preliminary and incomplete character of their current findings. While their article 

demonstrates that in theory one could define the time “clean” or “straight” at which an exoffender faces an equal risk (or “sufficiently close”) of arrest as the general population of the 

same age (“general population” meaning a blended population of ex-arrestees and the neverarrested) given sufficient information on birth year, age at first offense, and first arrest 

offense replicated for more jurisdictions, more offense types and more birth years, the gap 

between theory and practice still yawns before us. In addition to the still incomplete research 

agenda mentioned by Blumstein et al., one would also want to correct for the problem of outof-jurisdiction arrests and for time incarcerated/incapacitated. As well, when determining 

when comparative risks are “sufficiently close,” one would need information on the 

distribution and variation in risk preference among employers and the characteristics of jobs 

especially suited for re-entering offenders. In short, there is much more research to be done 

on these questions.

But it is important to note that even when this more extensive research agenda is completed, 

the result will not be a single estimate of the time since last contact with the criminal justice 

system at which a criminal record becomes “stale” and unpredictive, but rather a very large 

number of such estimates, each tailored to the unique circumstances of particular offenders 

including their age at first offense, nature of most recent offense, and current age (to mention 

just of few). What we won’t get is a single estimate on which a regulatory standard or 

administrative “bright line” sealing past criminal records can be anchored. The fruits of this 

particular line of research are more relevant to the employers’ assessment of the comparative 

risk of individual job applicants than to the articulation of administrative or regulatory 

guidances or rules uniformly applied.
Criminal Background Checks and the EEOC’s Conviction Records Policy 263

While witnesses have over interpreted the preliminary literature on redemption, it is quite 

striking that they have been reticent to engage a similarly preliminary body of research 

demonstrating that criminal history background checks reduce employment discrimination 

against Blacks. This is, of course, the literature on statistical discrimination by scholars such 

as Harry J. Holzer33 and Lior Jacob Strahilevitz.34 Holzer et al found that employers who 

conducted criminal background checks on applicants were more than 50% more likely to hire 

African Americans than employers who did not (24% versus 14.8%, respectively).35

Interestingly, Shawn Bushway has found that African Americans have higher wages in those 

states that have automated access to criminal history records to the greatest degree, and he 

attributes this finding to statistical discrimination in those states that have not automated 

access.36 Bushway also found that access to criminal history records reduced the differential 

between whites’ wages and blacks’ wages and the differential between whites and black 

employment levels (but the results were not statistically significant). At this early stage of the 

research on statistical discrimination, the policy conclusion reached by Strahilevitz is quite 

striking: we should “provide decision makers with something that approximates complete 

information about each applicant, so that readily discernible facts like race or gender will not 

be overemphasized and more obscure but relevant facts, like past job performance and social 

capital, will loom larger.”37

D. Revised Guidance issued by the EEOC offers no “safe harbor” for employers even if they 

follow scrupulously the EEOC’s own list of Employer Best Practices.

This recommendation points in exactly the opposite direction as 

those recommending curtailing access to criminal histories through background checks; 

indeed, it suggests that such limits on access to information will make racial discrimination 

worse.

On page 14 of the current Guidance, EEOC offers its opinion that it believes employers will 

consistently meet the “job related and consistent with business necessity” defense for using 

employment screens (such as criminal history background checks) that have a disparate 

impact if: the employer validates the criminal conduct screen for the position in question per 

the Uniform Guidelines on Employee Selection Procedures standards; or the employer 

develops a targeted screen considering at least the nature of the crime, the time elapsed, and 

the nature of the job (the three Green factors), and then provides an opportunity for an 

individualized assessment for people excluded by the screen to determine whether the policy 

as applied is job related and consistent with business necessity.

Having offered the appearance of a “safe harbor” to employers, the Guidance quickly casts 

doubt on the reality of any such safe harbor. First, on the matter of validation of any criminal 

conduct employment screen, the Guidance notes that “Although there may be social science 

 33 Harry J. Holzer, Steven Raphael and Michael A. Stoll, “Perceived Criminality, Criminal Background Checks, 

and the Racial Hiring Practices of Employers,” Journal of Law & Economics 49 (2006): 451-80. 34 Lior Jacob Strahilevitz, “Privacy Versus AntiDiscrimination,” John M. Olin Law & Economics Working 

Paper No. 349, The University of Chicago, July 2007.

35 Holzer et al. at 464. 36 Shawn D. Bushway, “Labor Market Effects of Permitting Employer Access to Criminal History Records,” 

Journal of Contemporary Criminal. Justice 20 (2004): 282. 37 Strahilevitz at 10.
264 Speakers’ Statements

studies that assess whether convictions are linked to future behaviors, traits, or conduct with 

workplace ramifications, and thereby provide a framework for validating some employment 

exclusions, such studies are rare at the time of this drafting.”38 It is rather astonishing that 

EEOC would admit that there is insufficient social science evidence pertaining to whether 

convictions are linked to future behaviors, traits or conduct with workplace ramifications to 

meet their own requirement that employment screens be validated. Second, item V.C. (page 

20) of the Guidance bluntly states that “If an employer successfully demonstrates that its 

policy or practice is job related for the position in question and consistent with business 

necessity, a Title VII plaintiff may still prevail by demonstrating that there is a less 

discriminatory “alternative employment practice” that serves the employer’s legitimate goals 

as effectively as the challenged practice but that the employer refused to adopt.” Of course, it 

is the EEOC who will make the determination of what practice is less discriminatory and 

what are an employer’s legitimate goals using its own judgment.

Jeffrey L. Sedgwick was appointed on January 2008 by President George W. Bush to serve 

as Assistant Attorney General for the Office of Justice Programs; he was confirmed by the 

Senate of the United States in October 2008 and served until January 2009. Mr. Sedgwick 

also served until October 2008 as director of the Bureau of Justice Statistics, the statistical 

agency of the Department of Justice, a position to which he was appointed by President 

George W. Bush in January 2006. Prior to his appointments, Dr. Sedgwick taught for 30 

years at the University of Massachusetts - Amherst. He is currently Professor Emeritus of 

Political Science at the University.

***

 38 EEOC, “Enforcement Guidance,” 15.
265 Speakers’ Statements

Jonathan A. Segal

STATEMENT OF JONATHAN A. SEGAL

PARTNER AND MANAGING PRINCIPAL, DUANE MORRIS INSTITUTE

DUANE MORRIS LLP

PHILADELPHIA, PA

ON BEHALF OF THE

SOCIETY FOR HUMAN RESOURCE MANAGEMENT

SUBMITTED TO THE

U.S. COMMISSION ON CIVIL RIGHTS

BRIEFING ON

“ASSESSING THE IMPACT OF CRIMINAL BACKGROUND CHECKS AND THE EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION’S CONVICTION RECORDS AND POLICY ON THE

EMPLOYMENT OF BLACK AND HISPANIC WORKERS”

DECEMBER 7, 2012

Introduction

Good morning Chairman Castro, Vice-Chair Thernstrom, and distinguished members

of the Commission. My name is Jonathan Segal, and I am Partner at Duane Morris LLP

specializing in employment law in general and equal employment opportunity in particular. I

also am the Managing Principal of the Duane Morris Institute. The Institute provides training

for human resource professionals, in-house counsel, benefits administrators and managers. I

frequently speak and write on employment law and issues affecting human resource

professionals and the workplace. I am also the Pennsylvania state legislative director for the
Criminal Background Checks and the EEOC’s Conviction Records Policy 266

Society for Human Resource Management, also known as SHRM, and it is in that capacity 

that I appear before you today as a member and representative of SHRM. 

SHRM is the world’s largest association devoted to human resource (HR) 

management. Representing more than 260,000 members in over 140 countries, the Society 

serves the needs of HR professionals and advances the interests of the HR profession. 

Founded in 1948, SHRM has more than 575 affiliated chapters within the United States and 

subsidiary offices in China and India. 

HR professionals play a critical role in creating a workforce comprised of skilled and 

talented employees as well as creating a work environment that yields high levels of 

employee satisfaction. SHRM has participated in ongoing discussions at both the national 

and state levels regarding the appropriate use of background information in the employment 

process. These discussions are heightened by the competitive employment environment 

created by today’s economy. SHRM and its members are supportive of, and involved with, 

various public policy initiatives focused on finding jobs for the unemployed. SHRM, for 

example, is currently working with the US Departments of Labor and Defense to help 

increase employment among returning military veterans and disabled individuals. 

My comments will describe the hiring process, shed some light on how HR 

professionals use background checks in the hiring process, the specific role of criminal 

background checks, and touch on various aspects of the recent EEOC guidance on the use of 

criminal background checks.

At organizations large and small, HR professionals are charged with ensuring that 

each individual hired possesses the talent, skills, and work ethic needed for the organization’s 

success. The consequences of making a poor hiring choice can be great, possibly leading to 

financial losses, an unsafe work environment, and, if the employee engages in severe 

misconduct, legal liability to customers, shareholders or other employees in the form of a 

negligent hiring lawsuit or other legal claims. As a result, HR professionals strive to make 

the most informed choices possible under the law when selecting candidates for their 

organizations.

In today’s market, it is not uncommon to receive hundreds of applications in response 

to just one advertisement for a vacant position. To cull through these job candidates, 

employers must use many factors to narrow the applicant pool to those who are most 

qualified. Factors may include years of work experience, work experience in the same 

industry, education, certifications and more. Once a group of candidates or a finalist is 

selected for a position, most often after an initial round of interviews, the HR department 

typically conducts a background check on the candidates or candidate. 

While the background check process is often a standard practice for most employers, 

the process varies, depending on the employer and the position being filled. Employers 

typically run a credit check, for example, on only those finalists for positions that involve 

money-handling or other fiduciary responsibility.
267 Speakers’ Statements

It is important to remember that certain federal and state laws, along with county and 

local ordinances, statutorily require employers to conduct specific background checks for 

certain positions such as licensed health care professionals, day-care providers, teachers and 

athletic coaches, and police and firefighters. The U.S. Congress has also been supportive of 

targeted criminal background checks, passing legislation allowing certain organizations to 

obtain national and state criminal history background checks on their volunteers and, in other 

legislation, tying federal funding to mandatory criminal background checks of employees. 

Many state laws require the use of criminal background checks for certain industries to 

maintain their licenses. Health care and child care are two industries that commonly have 

state law requirements that all or virtually all applicants submit to criminal background 

checks as a condition of employment. Some convictions under such state laws are automatic 

disqualifiers for employment. I include this information to illustrate the legal requirements 

placed on employers and the apparent recognition from Congress of the importance of these 

types of checks in the employment process. 

One difficulty faced by organizations seeking to hire an employee is that an 

individual’s previous employer is frequently reluctant to provide an accurate assessment of 

the former employee’s work history, strengths, and weaknesses for fear of potential liability. 

In the reference check process, employers can face claims made by the former employees 

themselves (in the form of a defamation or retaliation lawsuit) or a future employer 

(negligent referral) simply by giving an unabridged assessment of a candidate’s work 

background. As a result, most employers only provide the bare minimum amount of 

information in response to a reference check – confirming only that the candidate had worked 

for them, their title, and dates of employment. This lack of direct and complete reference 

information from the previous employer is one reason that many employers use the services 

of a background check company in an attempt to obtain the most accurate and complete 

picture of the potential employee. 

SHRM has surveyed its HR professional members on their use of background 

checks—including seeking information from references and obtaining credit and criminal 

background information. Employers have identified several reasons for the use of criminal 

history information. Fifty-two percent of employers cite the need to reduce the chances of 

legal liability because of a negligent hire. For example, assume a landlord of apartments hires 

someone to fix problems in apartments and the employee has unescorted access to all 

apartments. What if an applicant has a recent rape conviction, no background check is done, 

the individual is hired and he tragically rapes a tenant. A negligent hire claim is inevitable. 

This reason is followed closely by the need to provide a safe work environment for 

employees, cited by 49 percent of respondents. Providing each and every employee access to 

a safe work environment is required under the general duty clause of the Occupational Safety 

and Health Act. People are an employer’s greatest asset and a top priority for most employers 

is to protect their assets. I will provide a specific safety example in a few minutes.

In addition, thirty-six percent of employers use this information to reduce their risk of 

theft and embezzlement within their organization or by an employee against a customer. The 

National Retail Security Survey estimates that the U.S. retail industry lost more than $34 
Criminal Background Checks and the EEOC’s Conviction Records Policy 268

billion in 2011 due to employee theft. With losses such as these, it's understandable why 

employers are using every type of screening method they can to avoid making a poor hiring 

decision. 

Lastly, twenty-eight percent cite compliance with state law as the primary reason for 

conducting criminal background checks. In these cases, an employer must comply or the 

consequence may be the employer’s loss of its license to operate. 

SHRM’s own survey data provides a more complete picture of current HR practices 

and demonstrates that having a criminal record is not an automatic bar to employment. In 

fact, employers are more heavily influenced in the hiring decision by factors unrelated to 

criminal background information. According to SHRM surveys, 85 percent of HR 

professionals, when making hiring decisions, are most interested in finding an employee who 

will be a “good fit” with the organization (based on legal criteria), 82 percent want to know 

whether the candidate has previous work experience that is directly applicable to the job, 80 

percent whether the candidate possesses specific skills or expertise needed to perform the job 

requirements, and 67 percent are most interested in whether the candidate performs 

admirably during the interview process. 

Once an employer identifies candidates that they believe will help meet these 

objectives, they look at several legally-available sources of information about the candidate 

to supplement what the applicant has supplied. This supplementary information includes 

criminal history checks which are conducted by 87 percent of employers according to SHRM 

research data. HR professionals will also often talk to the candidate’s named references, 

verify information with the educational institutions included on the resume, and talk with 

former employers. If adverse information is found as a result of the criminal background 

check, 62 percent of SHRM respondents indicated they offer the candidate the opportunity to 

explain the circumstances surrounding the results before the job decision to hire or not hire is 

made. 

Failure to conduct a criminal check can result in an unreasonable risk. One illustrative 

example of the risk employers and employees may face involved BP’s efforts during the Gulf 

Oil Spill a few years ago. BP worked with state unemployment offices in Florida, Alabama, 

and Mississippi to fill thousands of positions to clean-up affected beaches. In this case, no 

criminal background checks were required—only drug tests. A BP contractor ended up hiring 

a supervisor who had a criminal history and had been placed on the national sex offender 

registry who, during his employment on a clean-up crew, allegedly raped one of the workers 

he supervised. As you can imagine, the media stories about the clean-up efforts quickly 

changed from kudos for the job opportunities provided to thousands of unemployed 

individuals to stories condemning the company for failing to protect the safety of other 

employees and the public by not performing a criminal background check on every clean-up 

employee hired.

We should also keep in mind the fact that employers must comply with legal 

restraints on how they obtain and use criminal history information. First, the federal Fair 

Credit Reporting Act (FCRA) specifically allows for the use of background checks for 
269 Speakers’ Statements

“employment purposes.” Under the Act, an employer that uses a third-party provider in the 

background process must notify the potential employee in advance of the process and obtain 

the applicant’s written approval to have his or her background checked by the provider. An 

employer is also required to notify the applicant if the individual was not chosen because of 

information in the report. 

In addition, the federal Equal Employment Opportunity Commission (EEOC) 

published updated guidance for employers to avoid discrimination when using criminal 

history information in April 2012. SHRM members were pleased to see that the guidance did 

not impose any new bright-line rules explicitly designed to prohibit employer access to and 

use of certain information. Instead, the Commission, in this guidance, continues to embrace 

use of the long-standing three-factor test identified by the case Green v. Missouri Pacific 

Railroad Company when evaluating criminal history. The Green factors are:

(1) The nature or gravity of the offense or conduct;

(2) The time elapsed since the conviction and/or completion of the sentence; and

(3) The nature of the job sought or held.

These factors are familiar to HR professionals. Indeed, SHRM has not received significant 

negative feedback from its members about the guidance as a whole. HR professionals have 

long taken seriously the need to balance the rights of job applicants against the needs of the 

employer when criminal history information is considered.

Two specific aspects of the guidance, however, have been mentioned as areas of 

concern by SHRM and its members. First, our members have expressed concern and 

confusion about the statement in the guidance that compliance with state and local laws will 

not shield employers from liability under Title VII. Although we appreciate preemption, this 

provision places employers between a rock and a hard place—between losing their state 

license (or opening themselves up to liability) if they don’t comply with a state law 

mandating criminal background checks and risking a class action lawsuit if they go forward 

with criminal background checks and base hiring decisions on the results. State laws serve an 

important purpose—that of protecting certain segments of the population, often the most 

vulnerable—from harm. The laws themselves are often the result of devastating events that 

no one wants repeated. 

We believe state law requirements can fit within the EEOC’s concept of a “targeted 

exclusion” based on the Green factors and specifically allowed for by the guidance. While 

our members have not reported any investigations brought against an employer resulting 

from this provision, the guidance raises the possibility and we are hopeful that the EEOC will 

clarify the validity of state law requirements as “targeted exclusions.”

Secondly, SHRM is concerned about the guidance’s interpretation of disparate 

impact. The guidance states, “National data supports a finding that criminal record exclusions 

have a disparate impact based on race and national origin. The national data provides a basis 

for the Commission to investigate Title VII disparate impact charges challenging criminal 

record exclusions.” It is not clear how imputing disparate impact based on national data can 
Criminal Background Checks and the EEOC’s Conviction Records Policy 270

be reconciled with the concept of the individualized assessment. Further, as written, it 

appears that employers may be vulnerable to EEOC investigation anytime they take an 

adverse employment action against individuals of certain races or national origins based on 

criminal background checks regardless of whether they have conducted a valid 

individualized assessment—seemingly making criminal convictions a new protected status. 

More specifically, under the guidance, assume an employer rejects one applicant and one 

applicant only for rape. The applicant is African American. It appears that the EEOC could 

allege adverse impact, even though only one applicant was adversely impacted. While I don’t 

know the exact number necessary for there to be a large enough pool for adverse impact to 

exist, I know it is larger than one. SHRM believes this section should be clarified to help 

employers comply.

In conclusion, we believe that the EEOC’s guidance serves an important societal 

interest and is generally consistent with long-standing case law. We do believe, however, that 

the two areas I have mentioned should be clarified for the benefit of employers, employees 

and third parties who do business with an employer. 

Thank you for your invitation to participate in today’s discussion, and I welcome the 

opportunity to answer any questions.

***
271 Speakers’ Biographies 

SPEAKERS’ BIOGRAPHIES

Alfred Blumstein

Alfred Blumstein is a University Professor and the J. Erik Jonsson Professor of Urban 

Systems and Operations Research and former Dean (from 1986 to 1993) at the H. John Heinz 

III College of Public Policy and Management of Carnegie Mellon University. 

He has had extensive experience in both research and policy with the criminal justice 

system since serving the President's Commission on Law Enforcement and Administration of 

Justice in 1966-67 as Director of its Task Force on Science and Technology.

Dr. Blumstein was a member of the National Academy of Sciences Committee on 

Research on Law Enforcement and the Administration of Justice from its founding in 1975 

until 1986. He served as Chairman of that Committee between 1979 and 1984, and has 

chaired the committee's panels on Research on Deterrent and Incapacitative Effects, on 

Sentencing Research, and on Research on Criminal Careers. He was a member of the 

Academy's Commission on Behavioral and Social Sciences and Education from 1994-2000. 

In 1998, he was elected to membership in the National Academy of Engineering.

On the policy side, Dr. Blumstein served from 1979 to 1990 as Chairman of the 

Pennsylvania Commission on Crime and Delinquency, the state's criminal justice planning 

agency. He served on the Pennsylvania Commission on Sentencing from 1986-96. He was 

recently appointed by US Attorney General Eric Holder as chair of the Science Advisory 

Board for the DoJ’s Office of Justice Programs. 

His degrees from Cornell University include a Bachelor of Engineering Physics and a 

Ph.D. in Operations Research. He was awarded an honorary degree of Doctor of Laws by the 

John Jay College of Criminal Justice of the City University of New York. 

He was President of the Operations Research Society of America (ORSA) in 1977-

78, he was awarded its Kimball Medal "for service to the profession and the society" in 1985, 

and its President's Award in 1993 "for service to society." He was president of the Institute of 

Management Sciences (TIMS) in 1987-88 and was President of the Institute for Operations 

Research and the Management Sciences (INFORMS) in 1996. He is a Fellow of the 

American Association for the Advancement of Science (AAAS), and INFORMS, and he 

served as President of COSSA (the Consortium of Social Science Associations) in 1998-

2000.

Dr. Blumstein is a Fellow of the American Society of Criminology, was the 1987 

recipient of the Society's Sutherland Award for "contributions to research," and was the 

president of the Society in 1991-92. At the 1998 meeting of the ASC, he was presented with 

the Wolfgang Award for Distinguished Achievement in Criminology. He was awarded the 

2007 Stockholm Prize in Criminology. 
272 Speakers’ Biographies

His research over the past thirty years has covered many aspects of criminal-justice 

phenomena and policy, including crime measurement, criminal careers, sentencing, 

deterrence and incapacitation, prison population, demographic trends, juvenile violence, and 

drug policy. 

Lucia Bone

Lucia Bone, is the Founder of The Sue Weaver C.A.U.S.E., Consumer Awareness of Unsafe 

Service Employment, a nonprofit organization founded in memory of her murdered sister, 

Sue Weaver. 

C.A.U.S.E. proactively keeps you and your family safe, one service worker at a time, by 

educating consumers and employers on the dangers of not knowing who you hire and the 

importance of proper annual criminal background checks on people working at our homes or 

with the vulnerable populations

C.A.U.S.E. Certification is a program designed to offer employers and consumers a means to 

hire safer workers. Consumers can search for C.A.U.S.E. Certified businesses by zip code 

and type of service for FREE at SueWeaverCAUSE.org. C.A.U.S.E. Certified businesses 

background screen employees annually following C.A.U.S.E. guidelines for your protection.

Nationally, Lucia shares her sister’s murder, how to protect yourself and your business, the 

importance of proper background screening and C.A.U.S.E. Certification. She campaigns for 

state and federal legislation requiring proper background investigations on individuals 

entering consumers’ homes or working with vulnerable populations. This type of consumer 

safety legislation should have saved her sister’s life. Lucia has appeared on national 

television, magazines and newspapers, and written a published chapter for a Christian book.

Garen E. Dodge

Garen Dodge is a Partner in the Washington, D.C. Region office of Jackson Lewis LLP. He 

is co-Leader of the firm’s Government Relations practice, and coordinator of the firm’s 

Government Contracts industry group.

Mr. Dodge’s practice covers the spectrum of labor and employment litigation, including both 

state and federal claims involving labor; privacy; discrimination; background checks; 

harassment; wage and hour; and occupational safety and health. He assists companies in 

establishing workplace programs, and trains supervisors and employees on effective 

personnel policies. He represents clients before Congress and key federal agencies on labor 

and employments issues.

Mr. Dodge has been recognized by Smart CEO as one of its “Go To Lawyers” and by 

Lawdragon as a “Leading Lawyer. He has also been named a “Super Lawyer” in both 

Washington, D.C. and Virginia, and has long been “AV” rated by Martindale-Hubbell.
Criminal Background Checks and the EEOC’s Conviction Records Policy 273

Mr. Dodge is a member of the Virginia, District of Columbia and Wisconsin bars. He is a 

Member of the United States Supreme Court bar, as well the federal and state courts in 

Virginia, District of Columbia and Wisconsin. He is a member of the Labor Relations 

Committee of the U.S. Chamber of Commerce, and serves on the Labor and Employment 

Litigation Steering Committee of the National Chamber Litigation Center. He is a law firm 

member of the Retail Litigation Center of the Retail Industry Leaders Association and serves 

as General Counsel to the Council for Employment Law Equity. He served as an AttorneyAdvisor for the U.S. Department of Labor, Office of the Secretary, Benefits Review Board 

from 1982-1985.

Mr. Dodge received his B.A. summa cum laude from the University of Wisconsin – Green 

Bay in 1979. He earned his J.D. in 1982 from the College of William & Mary’s MarshallWythe School of Law. 

William A. Dombi

William A. Dombi

Vice President for Law

National Association for Home Care

Director, Center for Health Care Law

Executive Director, Home Care and Hospice Financial Managers Association

Executive Director, National Council on Medicaid Home Care

228 7th Street, S.E.

Washington, D.C. 20003

(202) 547-5262

(202) 547-7126 fax

wad@nahc.org

Education:

Bachelor of Arts, Political Science, 

University of Connecticut, 1974

Juris Doctor, cum laude, 

University of Connecticut, 1978

Present Positions:

Vice President for Law, National Association for Home Care & Hospice (NAHC)

Director, Center for Health Care Law (CHCL)

Executive Director, Home Care and Hospice Financial Managers Association (HHFMA)

Executive Director, National Council on Medicaid Home Care
274 Speakers’ Biographies

Bill Dombi specializes in legal, legislative, and regulatory advocacy on behalf of 

patients and providers of home health and hospice care. With over 37 years of experience in 

health care law and policy, Bill Dombi has been involved in virtually all legislative and 

regulatory efforts affecting home care and hospice since 1975, including the expansion of the 

Medicare home health benefit in 1980, the formation of the hospice benefit in 1983, the 

institution on Medicare PPS for home health in 2000, and the national health care reform 

legislation in 2010. With litigation, Dombi was lead counsel in the landmark lawsuit that 

reformed the Medicare home health services benefit, challenges to HMO home care cutbacks 

for high-tech home care patients, lawsuits against Medicaid programs for inadequate payment 

rates, a nationwide class action against then-HCFA for its failure to enforce the federal HMO 

Act, litigation directed against the "Interim Payment System" for the Medicare home health 

benefit, and a lawsuit addressing the so-called Medicare “case mix creep adjustments” in 2008-

2010.

In addition to litigation, Bill offers extensive community and professional educational 

services through lectures, publications, teleconferences, and videos. He is the Editor and lead 

author of Home Care & Hospice Law: A Handbook for Executives, the only comprehensive 

legal treatise on the topic. His lectures include market trends in home care, compliance, risk 

management, patient rights, fraud and abuse, health care reimbursement, legislative and 

regulatory reforms, and legal issues in telehealth services.

Bill Dombi is admitted to practice in Connecticut and Washington, DC. He is also 

admitted to numerous federal courts including, the US Supreme Court and several Court of 

Appeals. He serves on the Advisory Board for BNA’s Medicare Report. Bill also is a 

longstanding member of the American Health Lawyers Association and the American Bar 

Association.

Nick Fishman

Nick Fishman co-founded EmployeeScreenIQ in 1999 and serves as the company's Chief 

Marketing Officer and Executive Vice President. Nick oversees all of EmployeeScreenIQ's 

marketing activities, including business development and brand building initiatives. Nick is 

the chief pioneer and architect of EmployeeScreen University, a first-of-its-kind online, 

educational learning resource for human resource, security and risk-management 

professionals. He is a frequent speaker on industry issues including: New Technologies in 

Employment Screening, Best Practices and Industry Trends. Nick is also a frequent blogger 

on the company's "IQ Blog”, conducts regular podcast interviews with industry insiders and 

serves as editor of the company's quarterly newsletter, The Verifier.

Nick currently serves on the Communications Committee for the National Association of 

Professional Background Screeners (NAPBS) and has also served as the organization's cochair of the Public Awareness Committee. Prior to his work with EmployeeScreenIQ, Nick 

helped Fortune 500 organizations build their brands through sports sponsorships including 

the Olympics, the National Football League, NASCAR and Major League Baseball. Nick 

holds a Bachelor of Arts in Political Science from The Ohio State University and has 
Criminal Background Checks and the EEOC’s Conviction Records Policy 275

extensive experience in the development of sales and marketing campaigns for both, large 

and small organizations.

Harry J. Holzer

Harry J. Holzer is a Professor of Public Policy at Georgetown University and a Senior Fellow 

at the American Institute for Research in Washington DC. He is a former Chief Economist 

for the U.S. Department of Labor and a former Professor of Economics at Michigan State 

University. He received his A.B. from Harvard in 1978 and his Ph.D. in Economics from 

Harvard in 1983. He is a Senior Affiliate of the National Poverty Center at the University of 

Michigan and a Research Affiliate of the Institute for Research on Poverty at the University 

of Wisconsin-Madison. He is also a Nonresident Senior Fellow with the Brookings 

Metropolitan Policy Program, an Affiliated Scholar with the Urban Institute, and a member 

of the editorial board at the Journal of Policy Analysis and Management. Holzer has authored 

or edited 11 books and several dozen journal articles, mostly on disadvantaged American 

workers and their employers. 

Richard S. Larson

Richard S. Larson is President and Owner of Winning Work Teams, Inc. a Florida-based 

strategic Human Resources consulting firm supporting small to midsize companies 

throughout the United States. 

Mr. Larson’s focus is to bring creative HR business solutions to growing companies in order 

to build a strategic foundation that fosters sustained organizational improvement through 

strong legal compliance, talent development, employee engagement and leadership coaching.

Mr. Larson practiced law in Las Vegas, NV, before joining Universal Studios, Inc. in 1983 as 

Director of Human Resources. While at the Los Angeles entertainment company Mr. Larson 

initiated the organization’s first executive development program and first employee 

assistance program. He also resolved numerous labor contract issues under industry-wide 

collective bargaining agreements.

In 1988, Mr. Larson was appointed Vice President of Administration for Universal Studios’ 

Orlando, Florida, operations. As such, Mr. Larson was charged with the responsibility to lead 

and develop the Human Resources function as well as numerous other disciplines including 

Legal, Risk Management, Safety and Security. The key mission was the successful 

recruitment and training of 5,000 employees to ensure a world-class guest experience at the 

Universal Studios Florida theme park upon Grand Opening in 1990. 

Mr. Larson continued in his executive leadership role directing HR activities to successfully 

support the recruitment and training of another 7,500 new employees to support the 1998 

Grand Opening of CityWalk, a 30-acre nighttime attraction complex, and the 1999 Grand 
276 Speakers’ Biographies

Opening of Universal’s Islands of Adventure theme park (current home of the Harry Potter

attraction).

During Mr. Larson’s 15-year tenure with the Universal Studios Resort in Orlando, Universal

built strong community-based partnerships with key Central Florida stakeholders including

schools, churches, seniors and the disabled to create a highly diverse workforce growing

from 15 to 12,500 employees.

Mr. Larson joined the InterContinental Hotels Group family in 2004 as Senior Vice President

People Services and Organizational Development at the Orlando, FL, Holiday Inn Family

Suites complex to direct the Human Resources function in support of the branding efforts and

the 2005 successful Grand Opening of the Nickelodeon Hotel as the world’s first themed

hotel designed for kids.

Mr. Larson subsequently joined the Florida law firm of Wicker, Smith, O’Hara, McCoy &

Ford, P.A. as senior labor and employment counsel for the state-wide legal defense firm to

handle employment litigation matters and conflict resolution.

Since 2008, Mr. Larson has been active with Winning Work Teams, Inc. to provide

leadership direction and to deliver creative HR business solutions to companies throughout

various market sectors--from medical to hospitality, from non-profit to retail to insurance.

Mr. Larson is highly active within the Central Florida community as a public speaker on

topical employment issues. He also teaches Society for Human Resources Management

(“SHRM”) certification classes to rising HR professionals through the University of Central

Florida. Mr. Larson is also an active speaker for the Florida Bar Speakers’ Bureau. He is also

an active member of the Florida Bar and Nevada Bar.

Mr. Larson dedicates time to his local Rotary Club and its community service projects in

Orlando, FL, where he continues to make his home.

Mr. Larson earned a double major with a B.A. degree in Political Science and Geography

from the University of California, Davis. He then earned a M.J. degree from the University

of California, Berkeley. Subsequently, he earned his J.D. in two years from Southwestern

University School of Law, Los Angeles, CA, where he was Associate Editor on the Law

Review. Mr. Larson may be reached at (321) 438-3392 or at www.winningworkteams.com

Donald R. Livingston

Donald R. Livingston is a partner in the Washington, D.C. office of Akin Gump Strauss

Hauer & Feld, where he represents large employers in all aspects of civil rights and

employment discrimination law, with an emphasis on complex employment litigation.

Mr. Livingston is a former general counsel of the U.S. Equal Employment Opportunity

Commission serving in the administration of President George H. W. Bush, where he was
Criminal Background Checks and the EEOC’s Conviction Records Policy 277

responsible for the federal government’s enforcement of Title VII of the Civil Rights Act of

1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans

with Disabilities Act.

He is a member of District of Columbia, Georgia, and American Bar Associations, and

serves on the ABA’s EEO Committee. He is a former chair of the Labor and Employment

Law Section of the State Bar of Georgia.

Mr. Livingston is the author of EEOC Litigation and Charge Resolution (BNA 2004), a

treatise covering all aspects of attorney interactions with the EEOC. In addition, he has

written numerous articles and spoken extensively on employment discrimination. He has

provided testimony before Congress on pending legislation and before the EEOC on pending

enforcement guidance.

In 2003, Mr. Livingston was elected to the College of Labor and Employment Lawyers,

which he has served as chair of the credentials’ committee for the District of Columbia

Circuit.

Glenn E. Martin

Glenn E. Martin, born and raised in Bedford Stuyvesant, Brooklyn, NY. He is the son of a

retired police officer, brother of a federal correction officer and was formerly incarcerated

himself. Today, Martin has risen to the role of Vice President of Development and Public

Affairs and Director of the David Rothenberg Center for Public Policy at The Fortune

Society, Inc., a social service and advocacy organization devoted to the successful reentry

and reintegration of individuals with criminal histories.

In his current role roles, Martin is responsible for developing and advancing Fortune’s

criminal justice policy advocacy agenda and providing leadership over the agency’s

Development and Communication Units. After exiting prison in 2000, Martin began working

at the Legal Action Center (LAC), eventually serving as the Co-Director of LAC’s National

H.I.R.E. Network (HIRE), a national project dedicated to eliminating barriers to employment

for jobseekers with criminal records. For Martin, his work is an authentic extension of his

life.

Martin has drafted and advanced major legislation to remove barriers to employment in six

states, co-authored the Independent Committee on Reentry and Employment transition

document for former NYS Governor Spitzer, and served as project manager on the largest

audit study ever conducted in the US on race and criminal record based discrimination in

low-wage labor markets.

Additionally, Martin has written and advanced legislation and policy reform proposals in a

number of states to remove barriers to employment, housing, education and voting for

formerly incarcerated people. Specifically, Martin advocated to the US EEOC for the

recently adopted US EEOC Title 7 Guidance on Jobseekers with Arrests and Conviction
278 Speakers’ Biographies

records. In 2012, he served as keynote speaker at the Department of Justice’s Annual COPS

Conference.

Knowing both sides of the justice system has made Martin extremely well versed in the

issues. Martin has appeared on several national news outlets, including CNN, MSNBC and

CSPAN. He has also has served as an expert on local television and radio, contributing on the

controversial issue of Stop and Frisk, as well as a number of other topics such as policing,

alternatives to incarceration and reentry issues. In addition to television appearances, Martin

hosts a NYC- based cable television show, Both Sides of the Bars, where he engages criminal

justice stakeholders and the local community in conversations about criminal justice reform.

Mr. Martin is currently a 2011-2012 Americas Leaders of Change National Urban Fellow

and a member of the Board of the NY Foundation. He also currently serves on NYC

Community Board #10, the NYC Council Task Force to End Gun Violence, NYC Mayor

Bloomberg’s Ban the Box Advisory Board, Governor Cuomo’s Executive Work for Success

Committee, NYS Executive Reentry Housing Committee, NYS Reentry Task Force,

National Network for Safe Communities, the DCJS Service Provider Advisory Committee

(SPAC), the Steering Committee of Reentry.net, the Correction Committee of the NYC Bar

Association (adjunct), the Policy Committee of Interfaith Coalition of Advocates for Reentry

and Employment (ICARE), the Employment Working Group of the NYC Discharge

Planning Initiative, the Board of Directors of the College and Community Fellowship and a

number of other boards and working groups addressing issues related to the reintegration of

people with criminal records.

WORK AUTHORED:

To Build a Better Criminal Justice System: 25 Experts Envision the Next 25 Years of

Reform: Marching Upstream, Moving Beyond Reentry Mania, The Sentencing Project

(2012).

Locking Down Civil Rights: Criminal Record-based Discrimination: Journal on

Race/Ethnicity: Multidisciplinary Global Contexts. Ohio State University (2008).

Co-authored the Independent Committee on Reentry and Employment Report, which offered

recommendations to the new gubernatorial administration to address criminal- record barriers

to labor market participation facing jobseekers with records (2006).

Co-authored HIRE's Know Your Rights manual, a document created to help people with

criminal records and those who work with them to understand juvenile and criminal records

and their impact on employment (2005).

Authored revision of 2003 version of client manual How to Get and Clean Up Your New

York State Rap Sheet (2003).
Criminal Background Checks and the EEOC’s Conviction Records Policy 279

AWARDS:

Hudson Link for College in Prison Brian Fischer Award (2010)

United States Probation Office of Southern Ohio Achievement Award (2010)

Exodus Transitional Community: Lonny McLeod Award (2009)

United States Probation Outstanding Commitment Award (2009)

Project Build Organization Community Reintegration Programs Award (2009)

The Laurie L. Scott Visionary Award (2008)

Kings County District Attorney Citation of Honor (2008)

National Offender Workforce Development Annual Policy Advocacy Award Winner

(2007)

Citizens Against Recidivism Thurgood Marshall Advocacy Award (2007)

AFFILIATIONS

• National Transition from Jail to Community Initiative (TLC), Advisory Board Member

• NYC Mayor’s ‘Ban the Box’ Advisory Workgroup

• College and Community Fellowship - Board of Directors, Member

• Americas Leaders of Change National Urban Fellow 2011-2012 Cohort Member

• NYC Discharge Planning Initiative Employment Working Group - Member and Former

Chair

• NYC Council Task Force on Gun Violence, Member

• Reentry.Net - Steering Committee, Former Member

• NYC Department of Probation Collateral Consequences Improvement Team, Former

Member

• NYC Community Board 10, Member

• NYC Bar Association - Correction Committee, Adjunct Member

• Interfaith Coalition of Advocates for Reentry and Employment - Policy Committee, Former

Member

• National Reentry Resource Center- Committee on Families and Communities, Former

Chair

• National Parole Resource Center - Steering Committee, Member

• NYS Service Provider - Advisory Council

• Voter Enfranchisement Project - Advisory Board, Former Member

• Career Gear Board of Directors - Former Member

• TCI Human Services Council – Member

• NY Foundation - Board of Directors, Member

MEDIA APPEARANCES/ CLIPS

MSNBC: The School to Prison Pipeline

http://video.msnbc.msn.com/melissa-harris-perry/48184011#48184011

MSNBC: Prison Nation

http://video.msnbc.msn.com/melissa-harris-perry/48952584#48952584
280 Speakers’ Biographies

C SPAN: Criminal Justice and African Americans

http://www.c-spanvideo.org/program/305391-2/

WPIX: Crime in New York City

http://www.wpix.com/videogallery/70505878/News/News-Closeup-6-17-Segment-1

http://www.wpix.com/videogallery/70505393/News/News-Closeup-6-17-Segment-2

http://www.wpix.com/videobeta/f411441b-8d1c-4efc-a3f3-b8c7a1612b5d/News/NewsCloseup-6-17-Segment-3

NY1: Stop and Frisk

http://www.ny1.com/content/top_stories/166055/number-of-nypd-stop-and-frisks-plummets-

-stats-show

http://www.ny1.com/content/news_beats/ny1_political_itch/161478/ny1-itch--quinn-getsready-as-kelly-tweaks-a-policy

NEW YORK TIMES LETTER TO THE EDITOR

http://www.nytimes.com/2012/06/14/opinion/the-problems-with-stop-and-frisk.html

HUFFINGTON POST

http://www.huffingtonpost.com/2012/04/11/trayvon-martin-eric-holder_n_1418003.html

Todd McCracken

Todd McCracken currently serves as president of National Small Business Association

(NSBA), directing all activities of the advocacy-oriented association. Mr. McCracken

became president of NSBA in 1997. Mr. McCracken started with the association in 1988,

previously serving as vice president of government affairs.

Mr. McCracken is a registered lobbyist before the U.S. Congress, representing the

organization in myriad settings. As director of its government affairs arm, Mr. McCracken

played a key role in developing NSBA’s policies on issues and the strategies in implementing

them. Since coming to the association, Mr. McCracken has testified before Congress

numerous times about issues ranging from fundamental health care reform to tax code

restructuring.

Mr. McCracken also is a frequent commentator in the media, having appeared on CNN,

CNBC, Fox News Channel, MSNBC, CBS Evening News, and NBC Nightly News as well

as in the Financial Times, USA Today, The Wall Street Journal, The Washington Post, The

New York Times, and myriad other publications.

As a non-partisan organization, NSBA works proactively with elected and administration

officials to promote policies that support small business growth and development. NSBA is

the nation’s oldest small business organization. It was founded in 1937.
Criminal Background Checks and the EEOC’s Conviction Records Policy 281

A native of New Mexico, Mr. McCracken is a graduate of Trinity University in San Antonio, 

Texas, with a B.A. in Economics.

Richard T. Mellor

Richard Mellor serves as Vice President, Loss Prevention for the National Retail Federation. 

Mellor joined NRF in November 2011 and is responsible for the direction of initiatives 

ranging from NRF’s Annual Loss Prevention Conference and LP Advisory Council to NRF’s 

Investigator’s Network. He works to raise the visibility of retail loss prevention issues, 

including organized retail crime and return fraud. 

Prior to joining NRF, Mellor served as an executive with companies such as Helzberg 

Diamonds, Macy’s, Woodward & Lothrop and John Wanamaker. He spent 12 years with 

Helzberg Diamonds, having most recently served as Divisional Vice President of Loss 

Prevention. Previously, Mellor was Divisional Vice President of Loss Prevention and 

Security for The Bon-Ton Stores and Regional Director of Security for Macy’s East.

In 2005, Mellor was awarded NRF’s Silver Plaque, which recognizes his leadership and 

influence on the retail LP community. He has been an active member of the NRF LP 

Advisory Council for more than 20 years, which includes his tenure as Chairman of the 

Council from 2002 to 2005.

Roberta Meyers

Roberta Meyers, Director of the Legal Action Center's National H.I.R.E. (Helping

Individuals with criminal records Reenter through Employment) Network.

Roberta has worked at the Legal Action Center for 20 years in various capacities and has 

been a staff member of the National H.I.R.E. Network project since its inception, serving as 

field educator and organizer, co-deputy director, co-director, and as of October 2007 as 

director. She works directly with policy makers and advocates around the country to identify 

public policy priorities that directly affect employment opportunities for people with criminal 

records and helps develop appropriate advocacy strategies that strengthen or challenge

existing legislation in those states. She has accepted invitations to present at dozens of

national, regional, and local criminal justice and workforce development conferences around 

the country. She has been called to testify before Congress and state legislators around the 

country.

Roberta was a contributing author for the U.S. Department of Labor guidebook, Working 

Ahead: A Guide for Connecting Youth Offenders with Employment Opportunities (July

2004), author of the “Completing Employment Applications” section of Legal Action 

Center’s How to Get and Clean Up Your New York State Rap Sheet, author of SAMHSA’s

monograph Serving the Employment Needs of Justice-Involved Juveniles and Adults: A 

Primer for Treatment and Recovery Support Service Providers (May 2008), co-author of the 
282 Speakers’ Biographies

National Reentry Blueprint: Model policies to promote the successful reentry of individuals 

with criminal records through employment and education (October 2008), and contributor to 

Closing the Doors to Higher Education: Another Collateral Consequence fora Conviction

(Dec. 2008). She has served as an advisor on publications and White Papers issued by the

National Governors Association, U.S. Department of Health and Human Services, NYS 

Department of Labor, and by many state, regional, and national organizations.

Roberta has a Bachelor of Science degree in Business, Management, and Economics with a 

concentration in Management from the State University of New York/Empire State College 

and she is candidate for a Master of Science in Public Leadership and Public Administration 

at Capella University. She serves on the Board of Directors of Youth Represent, steering 

committee member of the National Transitional Jobs Network, and as an Advisory Board 

member of the National Reentry Resource Center that was authorized under the Second 

Chance Act, the National Alliance on Mental Illness Veterans and Military Council, and on 

various projects of the American Bar Association.

Carol R. Miaskoff

Carol R. Miaskoff is Acting Associate Legal Counsel in the EEOC’s Office of Legal 

Counsel, where she supervises development of policy and regulations implementing Title VII 

of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal 

Pay Act. During her career at the EEOC, Ms. Miaskoff participated in the EEOC’s response 

to employment discrimination following the September 11th attacks, rulemakings under the 

ADEA and the Rehabilitation Act, issues related to online job applicants, and development of 

guidance on criminal record exclusions. She also led the Coordination Division of the Office 

of Legal Counsel, negotiating with other federal agencies to maximize the consistency of 

their workplace rules with the federal EEO laws. 

Ms. Miaskoff served on the EEOC’s Equal Pay Working Group and represented the 

Commission on the American Bar Association’s Fair Labor Standards Committee from 2008 

- 2011. She speaks regularly to labor and employment groups.

Montserrat Miller

Montserrat Miller is a Partner with Arnall Golden Gregory LLP’s Privacy and Immigration 

Practice Groups and co-chair of the firm’s Diversity Committee. Ms. Miller is Washington 

Counsel to the National Association of Professional Background Screeners (NAPBS), a trade 

association representing screening professionals involved in employment and tenant 

background screening.

Ms. Miller focuses her practice on compliance, risk mitigation and governmental policyrelated issues related to clients’ workforce. Her practice includes a focus on background 

screening and employment-related issues and she works with consumer reporting agencies 
Criminal Background Checks and the EEOC’s Conviction Records Policy 283

and employers regarding compliance with the Fair Credit Reporting Act, equal employment 

opportunity laws as well as state consumer protection laws. 

In addition to private practice experience, Ms. Miller worked in the U.S. Senate as Judiciary 

Committee Counsel to Senator Dianne Feinstein, advising her on immigration, homeland 

security, and data privacy and security matters. She began her legal career as a trial attorney 

for the U.S. Department of Justice, Immigration and Naturalization Service, entering service 

through the Attorney General's Honors Program.

Julie Payne

Julie Payne is the Chief Legal Officer of G4S’s Americas Region, providing legal guidance 

and oversight to G4S companies operating from Canada to Chile, and is also the General 

Counsel of G4S Secure Solutions (USA) Inc., the largest operating business unit of G4S in 

the U.S. Julie joined G4S in 2005 as Senior Vice President and General Counsel and is 

currently responsible for the provision of all legal services to the Americas Region business 

units and all risk and claims management in the United States. 

Prior to joining G4S, Julie held the position of Senior Counsel for Bayer CropScience LLP. 

Additionally, Julie has worked for Barton Protective Services, Inc. as Vice President and 

General Counsel, and as an Attorney for APAC, Inc., a large construction subsidiary of 

Ashland Inc. 

Julie holds two degrees from the University of Kentucky, where she earned a Juris Doctor. 

She is a member of The Georgia Bar and certified as Authorized House Counsel by The 

Florida Bar. She also serves on the Board of Directors for NASCO, the nation’s largest 

contract security industry association. In addition, Julie serves on the Board of Directors for 

the Literacy Coalition of Palm Beach County.

Jeffrey L. Sedgwick

Jeffrey L. Sedgwick was appointed on January 2008 by President George W. Bush to serve 

as Assistant Attorney General for the Office of Justice Programs; he was confirmed by the 

Senate of the United States in October 2008 and served until January 2009. In this capacity, 

Mr. Sedgwick was responsible for providing overall management and oversight of OJP, 

whose mission is to enlarge the nation's capacity to prevent and control crime, improve the 

criminal and juvenile justice systems, increase knowledge about crime and related issues, and 

assist crime victims.

He also both guided the development of OJP policy and priorities and coordinated the 

activities of its bureaus and offices. As Attorney General, Sedgwick oversaw OJP activities 

related to major Bush Administration and Department of Justice initiatives, including Project 

Safe Neighborhoods, Project Safe Childhood, the President's DNA Initiative, the Prisoner 

Reentry Initiative, and Helping America's Youth.
284 Speakers’ Biographies

Mr. Sedgwick also served until October 2008 as director of the Bureau of Justice Statistics, 

the statistical agency of the Department of Justice, a position to which he was appointed by 

President George W. Bush in January 2006. He was confirmed by the United States Senate in 

March 2006. In this capacity, Mr. Sedgwick guided the collection, analysis, publication, and 

dissemination of information on crime, criminal offenders, victims of crime, and the 

operation of justice systems at all levels of government.

He was responsible for approximately 48 distinct statistical collections together comprising 

the official national statistics on all aspects of the criminal justice system. These data are 

critical to federal, state, and local policymakers in combating crime and ensuring that justice 

is both efficient and evenhanded.

Prior to his appointment, Mr. Sedgwick taught for 30 years at the University of 

Massachusetts - Amherst. He is currently Professor Emeritus of Political Science at the 

University. In his academic career, Mr. Sedgwick has taught and written on a variety of 

aspects of American Government including public finance, policy analysis and evaluation, 

criminal justice policy, and executive leadership. He is the author of Law Enforcement 

Planning: the Limits of an Economic Approach and Deterring Criminals: Policymaking and 

the American Political Tradition.

Mr. Sedgwick has directed or participated in a wide variety of international programs in the 

past decade including lecturing or teaching in countries as diverse as Kyrgyzstan, Armenia, 

Romania, Ukraine, Russia, Belgium, Germany and Trinidad/Tobago.

Mr. Sedgwick earned his A.B. from Kenyon College (1973) and his M.A.P.A. and Ph.D. 

from the University of Virginia (1975 and 1978 respectively). Mr. Sedgwick and his wife, 

Patricia Young Sedgwick, have two adult children: son Alexander of Manhattan, New York 

and daughter Hilary of Philadelphia, Pennsylvania.

Jonathan A. Segal 

• Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, 

Benefits and Immigration Practice Group.

• Jonathan is also the Managing Principal of the Duane Morris Institute. An accredited 

HRCI provider, The Duane Morris Institute provides seminars and webinars on 

employment, labor, immigration and benefits issues. 

• Previously a litigator, Jonathan’s practice now focuses entirely on preventive 

counseling, strategic planning, management training and policy development.

• Areas of focus include: equal employment opportunity; wage and hour compliance; 

glass ceiling issues; performance management; social media. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 285

• Jonathan has provided training to federal and state judges across the country on

gender bias, performance management and other employment issues.

• Jonathan also has provided employment training to HR professionals in various

intelligence agencies.

• Jonathan has been cited as a national authority on employment issues in articles in

The Wall Street Journal, The New York Times, Fortune, The Los Angeles Times,

The Washington Post, CNN, Business Week and Money, among others.

• Jonathan has published approximately 200 articles for various publications on

employment issues.

• Jonathan is a contributing editor to HRMagazine and a regular contributor to

Fortune/CNN.

• Jonathan received his B.A., summa cum laude, from the University of Pennsylvania

and his J.D., cum laude, from the University of Pennsylvania School of Law.

***
286 Commissioners’ Statements

COMMISSIONERS’ STATEMENTS

Statement of Chairman Martin R. Castro

“We could choose to be a nation that extends care, compassion, and concern 

to those who are locked up and locked out or headed for prison before they 

are old enough to vote. We could seek for them the same opportunities we 

seek for our own children; we could treat them like one of ‘us.’ We could do 

that. Or we can choose to be a nation that shames and blames its most 

vulnerable, affixes badges of dishonor upon them at young ages, and then 

relegates them to a permanent second-class status for life. That is the path 

we have chosen, and it leads to a familiar place.”

― Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age 

of Colorblindness

I believe that the unfettered practice of conducting criminal background checks, which 

disproportionately impacts-- some would say “targets-- African-Americans and Latinos, has 

the effect of not only denying those former offenders a job, but serves to increase recidivism 

and perpetuates a cycle of poverty, second-class citizenship and dishonor for them, for their 

families and their communities. We must give these former offenders a chance to break that 

vicious cycle. The Equal Employment Opportunity Commission (hereafter “EEOC”) 

Guidelines do not eradicate the use of criminal background checks across the board, but they 

do away with across the board relegation of former offenders to the scrap heap of our society 

as it sets forth reasonable guidelines on how criminal background checks should be used to 

minimize discriminatory impact on minorities. 

I vividly recall going door-to-door when I ran for U.S. Congress a dozen years ago. In 

speaking with potential voters on a warm summer night, I encountered a young Latino man 

sitting on the stairs of his “apartment,” which was just an old store front converted into living 

space for himself, his wife and toddler. While his wife was the only registered voter at that 

address, she was busy in the apartment, so I struck up a conversation with the young man. He 

lamented to me that he had recently returned from prison and was earnestly looking for a job 

in order to support his family. However, everywhere he tried to apply for a job, he was not 

given a chance to apply due to his criminal history. While he planned to continue the job 

search, he was fearful that the consistent bar on his employment due to his status as a former 

offender would leave him no choice but to return to a life of crime in order to provide for his 

family. He was clearly pained about this prospect, and I was frustrated because there was 

nothing I could do to assure him that things would work out, or that I could even do anything 

to help him overcome the circumstances he was encountering as he was trying to do the right 

thing and make an honest living for himself and his family. 

While I never saw him again, I often think about him and what may have happened to him 

and his family. Did he find a job or did potential employers cast him away after potential 

employer, and eventually end up a statistic on the chart of recidivism? Based on the written 

public comments received by the Commission from ex-offenders, they continue to be 
Criminal Background Checks and the EEOC’s Conviction Records Policy 287

routinely rejected out of hand by employers as a result of their former offenses. Well, 

perhaps now, as Chairman of the United States Commission on Civil Rights, I can do 

something to help make a difference for that man I met while campaigning and for those 

countless, similarly situated others in communities of color across the nation, who are 

disproportionately impacted by laws and practices that have the effect of perpetuating a cycle 

of poverty and crime. For that, and other reasons, I stand in full support of the EEOC’s 2012 

Guidance on the Use of Criminal Background Histories.

Based on the testimony we received during the course of our briefing, I support the following 

conclusions:

1. Since at least 1972, the EEOC has asserted that disparate impact theory drawn from 

the Griggs1

2. The EEOC does not prohibit or restrict employers from asking for or obtaining 

background histories

decision forbids the blanket exclusion by an employer of all applicants 

with criminal histories;

2

;

3. The 2012 Guidance states categorically that any employer policy disfavoring persons 

with criminal records disproportionally affects racial and ethnic minorities, 

particularly blacks or Hispanics with criminal records nationwide.3 It bases this 

declaration on data from the U.S. Department of Justice’s Bureau of Justice Statistics 

showing nationwide conviction rates of blacks and Hispanics4

4. Based on its statistical information, the EEOC regards as likely disparate impact any 

exclusion of a black or Hispanic job applicant or employee with a criminal record. 

This would hold true regardless of the type of crime, the type of job, the location, or 

the nature of the employer’s business, unless the employer uses what the EEOC 

considers a narrowly drawn or “targeted” screen that does not exclude all persons 

with criminal records, or enquires into the details of each applicant’s history to 

determine suitability and establishes a rationale that is consistent with business 

necessity

disproportionately 

higher than their representation in the general population of the United States;

5

5. The new guidance does not forbid or restrict employers from obtaining background 

checks

;

6

6. The 2012 Guidance is couched largely in a series of factual examples followed by 

“best practices,” rather than commands

;

7

 1 U.S. COMMISSION ON CIVIL RIGHTS, “Assessing the Impact of Criminal Background Checks and the 

Equal Employment Opportunity Commission’s Conviction Record Policy,” page 4, citing Griggs v. Duke 

Power Co., 401 U.S. 424 (1971).

;

2 Id. at 4-5. 3 Id. at 7.

4 Id. (The Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the 

Civil Rights Act of 1964 2012 Guidance at 10 uses the phrase “race and national origin.”). 5 Id.

6 Id. at 8. 7 Id.
288 Commissioners’ Statements

7. The 2012 Guidance suggests that elapsed crime-free time subsequent to the offense 

offers an objective metric supporting the EEOC’s view that automatically excluding 

former offenders from employment is unwarranted and illegal8

8. Advocates for ex-offenders expressed the concern that former offenders are never 

given a chance to make their case to an employer because they are usually turned 

down immediately with no further explanation

;

9

9. Minority ex-offenders are hired less often, compared to non-minorities with the same 

criminal record

;

10

10. “Redemption,” as they call it, is the theory, supported by their studies, that as a 

certain number of years pass with no further convictions, an ex-offender rapidly 

approaches the risk level of someone with no record of convictions.

; and

11

As a result of the above conclusions from the testimony we received, I find it very hard to 

believe that increased or across the board use of criminal background checks actually helps, 

rather than hurts the employment of minority ex-offenders. Such a conclusion by 

conservative commentators is not supported by the weight of reality. In my personal 

experience these are not merely statistics, but real, and often shattered lives, which cannot be 

repaired because we have chosen to be a society, as Michelle Alexander says, that “shames 

and blames its most vulnerable, affixes badges of dishonor.” We must change this, not just 

for the benefit of these ex-offenders, but for all of our benefit, so that we can become a 

society that redeems rather re-damns those who have erred and who are seeking a second 

chance.

***

 8 Id. at 11. 9 Id. 10 Id. 11 Id. at 5.
289 Commissioners’ Statements

Statement of Commissioner Peter N. Kirsanow, Joined by Vice Chair 

Thernstrom and Commissioner Gaziano

Introduction

In April 2012, the EEOC issued new policy guidance regarding hiring people with 

criminal records.1 Although the EEOC presents this guidance as a mere refinement of the 

previous guidance, the EEOC’s triumphalism accompanying the new guidance suggests 

otherwise.

The Guidance is deeply flawed. It exceeds the EEOC’s authority and was adopted 

without releasing a draft to the public. The foundation of the Guidance is flawed, because it 

misapplies disparate impact theory by failing to appropriately compare non-offenders to 

offenders, and by conflating arrestees with convicts. The Guidance is too difficult for a 

layperson to effectively apply to their hiring process, and the individualized assessment 

reintroduces the prospect of disparate treatment into the hiring process. In discouraging the 

use of criminal background checks through the complexity of the Guidance and the fear that 

a little knowledge can be a dangerous thing when your friendly neighborhood EEOC 

investigator comes calling, the EEOC leaves employers exposed to negligent hiring lawsuits. 

Perhaps more importantly, discouraging the use of criminal background checks leaves 

Americans more likely to fall victim to the behavior that leads to negligent hiring lawsuits. 

And unfortunately, the Guidance is unlikely to increase employment among AfricanAmerican men, who are the primary purported beneficiaries.

I. The Guidance is Premised on a Misapplication of Disparate Impact 

Theory.

a. The EEOC Misapplied Disparate Impact Theory by Comparing Ex-

 Offenders to Non-Offenders.

The Guidance is based on the EEOC’s pet theory, disparate impact. The Supreme 

Court first recognized this theory in the 1971 case Griggs v. Duke Power, and Congress 

incorporated the theory into the Civil Rights Act of 1991. We have in other contexts 

discussed the constitutional problems with disparate impact theory.

2 Setting aside the 

constitutional problems, a problem remains: the Guidance does not satisfy the standards for 

disparate impact established in Griggs.

In Griggs, employees who wanted to transfer into certain positions were required 

either to possess a high school diploma or achieve a certain score on an intelligence test. 

However, the high school diploma requirement had been instituted in 1955, and therefore, at 

 1 Equal Employ. Opp’ty Comm., ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST 

AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS UNDER TITLE VII OF THE CIVIL 

RIGHTS ACT OF 1964 [hereinafter “Guidance”].

2 See Brief for Gail Heriot, Peter Kirsanow, and Todd Gaziano as Amici Curiae Supporting Petitioner,

Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc., No. 11-1507 (2013).
290 Commissioners’ Statements

the time of trial there were still employees working at the power plant who had been 

promoted into these positions before the requirement was introduced. These employees 

performed satisfactorily in those roles and had even been promoted from their initial 

positions.3 Because there were successful employees who did not meet the high school 

diploma requirement, the Court found that these requirements were not job-related and 

therefore violated Title VII because of the disparate impact on minority workers.4

As debatable as the Court’s decision may have been in regard to interpreting Title 

VII, 5 at least the Court had some evidence on which to base its claim that the education and 

testing requirements were not job-related. No such evidence was available on which the 

EEOC could base its new guidance.6 Furthermore, the EEOC massages the available social 

science to suggest that there is no way to tell which offenders may be high-volume offenders, 

which contradicts the available research.7

Therefore, the EEOC completely abandoned this aspect of the Griggs decision in

formulating the Guidance. The EEOC adduced no evidence regarding whether people with

criminal records are better, comparable, or worse employees than people without criminal

records.8 The EEOC’s representative, Carol Miaskoff, admitted this at the Commission’s

hearing.9

 3 Griggs v. Duke Power, 401 US 424, 427, 432, note 7 (1971).

Without such data, the EEOC cannot determine whether a criminal history is in fact

immaterial when predicting an applicant’s job performance. Furthermore, the EEOC fails to

The evidence, however, shows that employees who have not completed high school or taken the tests 

have continued to perform satisfactorily and make progress in departments for which the high school 

and test criteria are now used. The promotion record of present employees who would not be able to 

meet the new criteria thus suggests the possibility that the requirements may not be needed even for the 

limited purpose of preserving the avowed policy of advancement within the Company. . . . For 

example, between July 2, 1965, and November 14, 1966, the percentage of white employees who were 

promoted but who were not high school graduates was nearly identical to the percentage of 

nongraduates in the entire white work force. 4 Id. at 432-436. 5 See Brief for Heriot et al., supra note 2. 6 Guidance at 13 (“Although there may be social science studies that assess whether convictions are linked to 

future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for 

validating some employment exclusions, such studies are rare at the time of this drafting.”).

7 See infra at 3-6. 8 See Guidance at note 14. The Guidance relies upon a study of New Zealand youths that found that adolescent 

criminal convictions did not predict counterproductive work behaviors in adulthood, see Brent W. Roberts et 

al., Predicting the Counterproductive Employee in a Child-to-Adult Prospective Study, 92 J. APP. PSYCHOL. 

1427, 1430 (2007). This study is not terribly useful because criminal behavior in adolescence is quite common, 

but most people desist during or shortly after adolescence, see John H. Laub and Robert H. Sampson, 

Understanding Desistance from Crime, 28 CRIME & JUSTICE 1, 6 (2001) (“based on the available data, 

desistance occurs most often during and after adolescence. Based on the evidence, desistance is normative for 

most offenders.”). If indeed “it is statistically aberrant to refrain from crime during adolescence,” id. (citation 

omitted), it is unsurprising that adolescent criminal convictions in and of themselves do not predict the presence 

of counterproductive work behaviors in adulthood. See also Alfred Blumstein and Jacqueline Cohen, 

Characterizing Criminal Careers, 237 SCIENCE 985, 989 (1987) (there is a “rapid buildup of participation [in 

crime] in the early teen years, followed by steady termination of criminal careers in the later teen years and 

early 20s.”).

9 Report at 47-48.
Criminal Background Checks and the EEOC’s Conviction Records Policy 291

consider that even if an employee who is an ex-offender does not exhibit so-called

counterproductive work behaviors, if he recidivates it will cost the company money and

manpower. The likelihood that a particular employee will be arrested and therefore unable to

come to work is a legitimate business concern, and one that social science can predict with

some accuracy.10 This undercuts the EEOC’s use of disparate impact theory as applied to

criminal records. If a criminal history is a meaningful predictor of an applicant’s job

performance, then employer use of criminal history is job-related and consistent with

business necessity, and whether or not its use has a disparate impact on minorities is

substantially irrelevant.

The question is whether applicants with criminal records, particularly those who have

been incarcerated, differ in important ways from applicants who do not have criminal

records. We already know that former inmates differ in one important way: they have been

incarcerated. The importance of that fact should not be overlooked. The EEOC’s Guidance

states that the percentage of Americans who have been incarcerated may reach 6.6%.11 That

means that 93.4% of Americans never serve time in prison. Based on the Guidance, you

would think every other person you see on the street has been incarcerated. That simply is

not the case. Spending time in prison does set you apart from the vast majority of Americans.

The question the EEOC does not answer is whether ex-inmates differ from nonoffenders in other ways that are relevant to employment. For example, is ex-inmate status

correlated with a lack of respect for authority as compared to the 93.4% of Americans who

do not have a criminal record? Almost all Americans have wittingly or unwittingly broken a

law at some point –trespassing, speeding, failing to report all their tips on their taxes. Yet the

overwhelming majority sufficiently conform their behavior to the requirements of the law to

avoid prison time. As Steven Raphael writes, “Those who serve time in U.S. prisons are

hardly a random sample of the U.S. population. Individuals who pass through the nation’s

prisons tend to come from poverty, [and] suffer disproportionately from physical and mental

health problems as well as substance abuse problems,”12 all of which may cause employers

to doubt an ex-offender’s reliability and ability to work well with others.13

10 See Alfred Blumstein et al., Delinquency Careers: Innocents, Desisters, and Persisters, 6 CRIME AND

JUSTICE 187 (1985) (stating that at least a third of cohort members from multiple delinquency studies are

arrested, but most have only one or a few contacts with the justice system; however, if a cohort member has six

or more contacts with the criminal justice system the probability of recidivism is eighty percent); see also

Blumstein and Cohen, supra note 7 (“common belief suggests that offenders are about to terminate their

criminal careers by age 30 . . . however, it becomes clear that among those offenders who do remain active,

mean residual careers length actually rises until about age 30, is fairly flat through the 30s, and then begins to

decline rapidly in the early 40s”).

 The EEOC

addresses none of these issues and blithely assumes that ex-offenders as a group do not differ

significantly from the non-offender population.

11Guidance at note 9. 12 Steven Raphael, Improving Employment Prospects for Former Prison Inmates: Challenges and Policy 5

(Nat’l Bureau of Econ. Research, Working Paper No. 15874, 2010), available at

http://www.nber.org/papers/w15874. 13The Americans with Disabilities Act and similar state laws sometimes prevent employers from taking into

account an employee’s physical or mental health problems. We mention untreated substance abuse as a factor

that can affect an employee’s reliability.
292 Commissioners’ Statements

b. The EEOC Misapplied Disparate Impact Theory by Conflating 

 Arrestees with Ex-Prisoners.

An additional problem with the EEOC’s failure to accurately compare ex-offenders 

with non-offenders is that the EEOC misapplies the scholarly research that is available 

regarding redemption and recidivism. The Guidance is primarily concerned with problems 

surrounding the reentry of ex-offenders following incarceration.14 However, all but one of 

the works they cite on redemption only examine arrest records15 – and the one paper that 

examines people convicted of crimes is far less sanguine regarding speedy desistance.16 For 

example, Blumstein and Nakamura specifically state that they studied first-time arrestees 

who had been arrested for robbery, burglary, or sexual assault. These criteria were adopted in 

part to avoid arrestees who would be sentenced to imprisonment.17 First-time arrestees and 

ex-prisoners are simply not comparable. Blumstein and Nakamura cite a 1967 study that 

“estimated that 50 percent of the U.S. male population would be arrested for a nontraffic 

offense in their lifetime.”18 Yet the EEOC cites an FBI estimate that at some point in the 

future, 6.6 percent of Americans may have experienced incarceration. The 50 percent of the 

population that is ever arrested likely differs substantially from the 6.6 percent of the 

population that is ever incarcerated, yet the EEOC is basing a policy intended to help the 

latter group on research conducted on the former group.

Ex-convicts, especially ex-prisoners, are very unlike first-time arrestees, yet the 

Guidance conflates the two groups. The research regarding first-time arrestees tells us little 

about the possibility of future offending by people who have been convicted of crimes. In 

fact, the only study used by the EEOC that examined people convicted of crimes found that 

10-13 years must elapse before first-time offenders aged 12-26 are a re-conviction risk 

comparable to their nonoffending peers, which is a significantly longer period of time than 

that seemingly contemplated by the Guidance.19 The risk of recidivism for first-time 

offenders declines sharply with increased age, but this is due to the fact that 40-year-old firsttime offenders are “almost indistinguishable from the general population.”20

 14 Guidance at 3 (focusing on percentage of Americans in various ethnic groups who are ever incarcerated); 

Guidance at note 16 (discussing Cabinet-level interagency Reentry Council’s efforts to remove barriers to exoffender employment).

If someone 

hasn’t embarked on a criminal career before age 40, they are unlikely to do so.

15 See Shawn D. Bushway, Paul Nieuwbeerta, & Arjan Blokland, The Predictive Value of Criminal Background 

Checks: Do Age and Criminal History Affect Time to Redemption? 49 CRIMINOLOGY 27, 32-33 

(2011)(stating that the four studies that had been conducted regarding redemption, which are the same four 

relied upon by the EEOC, all only examined arrestees, not people convicted of crimes).

16 See infra at 4. 17 Alfred Blumstein and Kimorini Nakamura, Redemption in the Presence of Widespread Criminal Background 

Checks, 47 CRIMINOLOGY 327, at 335 (2009). 18 Id. at 330. 19 Bushway et al. at 49-50. 20 Id. at 49-51. It is important to note that the Bushway study uses convictions as a marker of recidivism, while 

the Blumstein and Nakamura study uses arrests as a marker of recidivism, which may account for the differing 

findings regarding recidivism. It is possible both that at some point ex-convicts are no more likely to be 

convicted of a crime than are nonoffenders, and that they are more likely to be arrested than nonoffenders.
Criminal Background Checks and the EEOC’s Conviction Records Policy 293

These findings regarding the recidivism of ex-convicts are more sobering than the

Guidance would have us believe, but they do not tell the whole story. The risk of recidivism

is much higher among people who have even one prior criminal conviction. More

importantly, given that most people released from prison will have multiple offenses, “those

with multiple prior offenses never have the same level of risk of offending as those with no

records.”21 This group is far more comparable to people released from prison, given that “the

272,111 offenders discharged in 1994 had accumulated 4.1 million arrest charges before their

most recent imprisonment and another 744,000 charges within 3 years of release.”22 (The 4.1

million arrests do not include the arrest that resulted in their imprisonment.)23 The mean

number of prior arrests was eight.24 Obviously, arrests and convictions are not

interchangeable, but the large number of arrests does indicate frequent contact with the

justice system.

In a three-year study of prisoners who were released in 1994 conducted by the Bureau

of Justice Statistics, “67.5% of the prisoners were rearrested for a new offense (almost

exclusively for a new felony or a serious misdemeanor), 46.9% were reconvicted for a new

crime,” and 25.4% were resentenced to prison for a new crime.”25 Furthermore, these exoffenders as a group had committed a substantial number of crimes: Following their release,

the ex-prisoners “accounted for 8.4% of all the homicides in the 13 States [that were studied]

in 1995,” as well as “5.4% of all the arrests for rape in the 13 States in 1994 and 9.0% of all

the arrests for robbery in the 13 States from 1994-1997.”26 The prisoners released in 1994

also constituted 9.9% of the arrests for motor vehicle theft and 12.4% of the arrests for

burglary in 1994.27 The authors note:

Although these percentages may seem small, they are actually the product of

high rates of criminality. For example, to account for the 8.4% of homicides,

the 234,358 released prisoners were arrested for homicide at a rate 53 times

higher than the homicide arrest rate for the adult population. Note also that

the 8.4% arrest rate does not include homicides by

(a) prisoners released in 1995;

(b) prisoners released before 1994, or

(c) released prisoners who had crossed state lines. The percentage of

homicides attributable to released prisoners would be substantially greater if

it included persons in categories a, b, and c.

28

21 Bushway et al. at 34. 22 Patrick A. Langan and David J. Levin, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT:

RECIDIVISM OF PRISONERS RELEASED IN 1994, 1 (2002), available at

http://www.bjs.gov/content/pub/pdf/rpr94.pdf. 23 Id. at 5. 24 Id. at 2. 25Id. at 1. The number of ex-prisoners resentenced to prison does not include people resentenced to local jails,

see

id. at 7. 26 Id. at 6. 27 Id. at Table 5. 28 Id. at 6.
294 Commissioners’ Statements

Furthermore, ex-offenders, even when that is defined as people who were arrested 

once, are always at a higher risk of re-arrest than are people who have never offended.29 As 

Dr. Blumstein’s work shows, if the ex-offender avoids re-arrest for several years, his risk of 

re-arrest declines until it is roughly the same as the risk that someone in the general 

population (which includes both non-offenders and repeat offenders) will be arrested.30 If the 

person stays clean long enough, eventually their risk of offending drops below that of the 

general population, but not below the risk level of non-offenders.31

The Guidance also ignores the fact that even specialists don’t really understand what 

causes someone to desist from crime32,or even what constitutes desistance.33 There are 

correlates of desistance34, but even remaining crime-free for a long period is no guarantee 

that the person has abandoned criminality.35 It is possible to predict that someone may persist 

in crime, but it is difficult to know when they have permanently desisted from crime. The 

EEOC ignores this reality.36 It is simply beyond an employer’s capacity to determine if 

someone has desisted from crime when experts cannot even predict desistance with 

precision, yet the Guidance expects employers to do exactly that.

II. The Guidance is Overly Complex and Vague

The standards to which employers must adhere when considering an applicant’s 

 29 Blumstein and Nakamura at 340 (“Because the risk of rearrest for a redemption candidate might be expected 

to approach, but not cross, the risk of arrest for the never arrested, it becomes a matter of having to assess when 

the two curves are “close enough.”). 30 Report at 36-38. 31 Blumstein and Nakamura at 340. 32 Laub and Sampson, supra note 8, at 2 (2001) (“Indeed, the characteristics that distinguish persistence in a life 

of crime from desistance within any group of high-risk offenders are generally unknown.”). 33 See id. at 4-8. 34 Id. at 2.

Elements such as family formation and gaining employment, for example, appear to predict desistance 

from crime in adulthood. But the research evidence is not strong or convincing. To cite but one 

example, Wright and Wright (1992, p. 54) concluded that “no clearly confirming set of findings has 

emerged from research to date that demonstrates that getting married and having children reduces the 

likelihood of criminal offense. 35 Bushway et al. at 52 (“offenders with four or more offenses either never resemble nonoffenders or only begin 

to do so after a minimum of 23 years. Their history of frequent offending continues to resonate in their life 

course even after they have been crime free for more than 20 years.”).

36 See Guidance at note 14. The Guidance relies upon a study of New Zealand youths that found that adolescent 

criminal convictions did not predict counterproductive work behaviors in adulthood, see Roberts, supra note 8, 

at 1430. This is likely because offending is very common in adolescence, and therefore adolescent offenders do 

not significantly differ from the general population, see Laub and Sampson, supra note 8, at 6 (“based on the 

available data, desistance occurs most often during and after adolescence. Based on the evidence, desistance is 

normative for most offenders. Moffit, for example, has written, ‘Indeed, numerous rigorous self-report studies 

has now documented that it is statistically aberrant to refrain from crime during adolescence” (citation 

omitted)). Offenders who do not desist during or shortly after adolescence may have a significantly longer 

criminal career, see Blumstein and Cohen, supra note 8, at, 989 (“common belief suggest that offenders are 

about to terminate their criminal careers by age 30 . . . . [but] it is clear that among those offenders who do 

remain active, mean residual career length actually rises until about age 30, is fairly flat through the 30s, and 

then begins to decline rapidly in the early 40s.”).
Criminal Background Checks and the EEOC’s Conviction Records Policy 295

criminal history are complex. First, if the employer decides not to hire someone based on

their criminal record, the employer must consider three factors and use them to justify the

exclusion: 1) the nature and gravity of the offense; 2) the time elapsed since the offense; and

3) the nature of the job held or sought. These factors were first articulated in the Eighth

Circuit case Green v. Missouri Pacific Railroad.

37 According to the EEOC, if an employer

has a policy of excluding people with certain criminal records, the policy must not only take

the Green factors into account, but there must also be a very tight fit between the factors and

the exclusion.38 For example, a company policy against hiring anyone convicted of a felony

would almost certainly run afoul of the Green factors.39 Discussing the then-forthcoming

guidance, EEOC Commissioner Victoria Lipnic said exactly that to the Chamber of

Commerce: “One bright-line policy you should not adopt is having a no-felons policy. If you

have that policy, that’s going to be a problem if you’re subject to an EEOC investigation.”40

Unfortunately, creating a policy that has the required nexus between the factors and the

exclusion will be very difficult for most small businesses, especially because the Guidance

has almost no bright-line rules. The Guidance does not even state that certain crimes are so

serious that a company would be justified in having a blanket policy against hiring anyone

convicted of such crimes.

a. Factor One: The Nature and Gravity of the Offense

The EEOC’s focus on the first Green factor deserves scrutiny. The analysis required

to create such a policy is too difficult for most small businesses. The Guidance states that the

employer should “carefully consider” the nature and gravity of the offense by considering the

specific harm caused by the crime and perhaps by examining the legal elements of the

offense. “For example, a conviction for felony theft may involve deception, threat, or

intimidation.”41 This is simply beyond the capability of almost all small business owners and

even beyond the capability of the HR departments of smaller companies. Researching the

elements of a crime and determining their applicability to a particular position is a job for an

attorney, not an HR professional. The phrase “elements of the crime” will elicit only a blank

stare from most nonattorneys.

The focus on job-relatedness assumes that if an offender is going to re-offend, he will

commit a similar crime, and therefore that is all that should concern the employer. Studies of

recidivism and criminal careers only partially support this assumption (the roots of which

admittedly lie with the Eighth Circuit, not the EEOC). Although ex-offenders are more likely

than not to reoffend, they will not necessarily commit the same crime.42

37 Green v. Missouri Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977).

 Interestingly,

38 Guidance at 17-18. 39 Id. at 16-17. 40 Victoria Lipnic, Commissioner, Equal Employment Opp’ty Comm’n, Keynote Address at the U.S. Chamber

of Commerce: A View from the EEOC,

http://link.brightcove.com/services/player/bcpid1062994879001?bckey=AQ~~,AAAAEkkpZUk~,X1iY6-

4YH0xD1Wm6DlVB4kWeHRwgu8hA&bctid=1505101556001, at 48:00 (March 13, 2012). 41 Guidance at 15. 42 Alfred Blumstein et al., Specialization and Seriousness During Adult Criminal Careers, 4 J. QUANT. CRIM.

303, 336 (1988). [T]he direction of switching from most crime types [to more or less serious crimes] is
296 Commissioners’ Statements

offenders who committed the most serious crimes are less likely to commit the same crime 

than are offenders who committed less serious crimes, but the gravity of the offenses means 

that employers will still probably be more worried about hiring a murderer or rapist than a 

car thief.43 crimes both in the workplace and out of the workplace, job-relatedness is not as 

useful a concept as the EEOC thinks it is.

b. Factor Two: The Time Elapsed Since the Offense

The Guidance provides almost no actual guidance regarding how soon an employer 

must disregard an applicant’s criminal record. First it refers to the Green decision, which

“acknowledge[d] that permanent exclusions from all employment based on any and all 

offenses were not consistent with the business necessity standard.”44 The Guidance quotes 

the Third Circuit El v. SEPTA45 decision (which allowed an exclusion based on Douglas El’s 

forty-year old murder conviction) that summary judgment might not have been granted if El 

had presented expert testimony that a forty-year-old conviction made him no more of a risk 

than a member of the general population.46 The EEOC then helpfully notes that the time 

factor is fact-specific, and that “Relevant and available information includes, for example, 

studies demonstrating how much the risk of recidivism declines over a specified time.”47 The 

studies to which the EEOC cites, however, are the same studies discussed above, with all 

their attendant predictive shortcomings. More importantly, Coca-Cola or American Express 

can hire lawyers and social scientists to read the available literature and try to craft a 

temporal exclusion that provides some measure of protection to the company while satisfying 

the EEOC. Bob, sole owner of Bob’s Garage, does not have the resources to do so and is left 

to try to sort it out on his own.

Furthermore, the few examples the EEOC provides of temporal requirements are 

either overly optimistic regarding the time frame for “redemption” or simply unhelpful. 

Example Seven provides an example of a targeted exclusion for convictions from four years 

ago or less and indicates that this is acceptable.48

 

independent of that crime type....There are, nevertheless, some indications of trends in seriousness. White 

arrestees in the two Michigan samples show high levels of de-escalation in seriousness following arrests for 

rape. There is consistent evidence of escalation in seriousness in all subgroups after arrests for aggravated 

assault, and some escalation is observed following arrests for robbery, especially among white offenders, 

following arrests for auto theft, and following weapons offenses for white offenders in South Michigan.

Based on the recidivism research discussed 

above, this may be too optimistic. In Example Eight, which is the other example regarding 

the temporal requirement, the employee had “pled guilty to misdemeanor insurance fraud 

five years ago, because he exaggerated the costs of several home repairs after a winter 

43 Id. at 341-42.

[S]ome specialization was found in all crime types for adult offenders....Specialization was highest in 

drugs and fraud (especially among white offenders) and in auto theft (especially among black 

offenders)....In contrast, the more impulsive, violent crimes of homicide, rape, and weapons violations 

were among the least specialized. 44Guidance at 15.

45El v. Southeastern Penn. Transp. Auth., 479 F.3d 232 (2007).

46Guidance at 15.

47 Id. 48 Id. at 19.
Criminal Background Checks and the EEOC’s Conviction Records Policy 297

storm.”49 The employee had achieved a good work reputation for honesty and 

trustworthiness for five years subsequent to the conviction. Then the shredding company for 

which he worked changed ownership. The employee re-applied for his job, and the new 

owner ran a criminal background check on him. Despite his strong performance reviews, 

“management informs Jamie that his guilty plea is evidence of criminal conduct and that his 

employment will be terminated.” The EEOC says this likely constitutes a Title VII 

violation.50 However, an employer will not usually be in a situation where he is deciding 

whether to retain an employee with a misdemeanor conviction who also has a years-long 

track record of success and honesty at a company that the employer has purchased. Instead, 

employers are usually interviewing a previously-unknown applicant and assessing how risky 

it would be to hire him. This limits the usefulness of Example Eight.

Additionally, none of the examples explain how an employer should calculate the 

temporal exclusion in circumstances where the applicant served prison time. This is a 

particularly odd omission because the Guidance is largely motivated by concerns about 

prisoner reentry. Does the EEOC expect an employer to use the time elapsed since the 

conviction itself in calculating the temporal exclusion? Or should the employer use the time 

elapsed since the person was released from prison?

c. The Nature of the Job Held or Sought

In regard to factor three, how do you judge what crimes are important in the context 

of the job sought? Probably everyone agrees on the easy cases – someone convicted of sexual 

assault shouldn’t work with children, and someone convicted of animal abuse shouldn’t work 

at a vet’s office. But what about harder cases? What if a trucking company has a policy 

against hiring anyone convicted of drug use in the past five years? Drug use might not seem 

to be connected to trucking in the same way that it would be connected to working at a 

pharmacy, but the owner of the company might think that people recently convicted of drug 

crimes are prone to begin using again and fear that they might drive his trucks while under 

the influence. These are the sorts of questions that the guidance does not answer.

d. The Individualized Assessment

Even after applying the Green factors, the employer must then conduct an 

“individualized assessment,” which gives the job applicant an opportunity to explain why he 

should be hired despite his criminal record and despite having been screened out by the 

company’s policy that adheres to the Green factors.

The EEOC may reply that this is exactly why companies should not have policies 

against hiring people with criminal records and should instead apply the Green factors to 

each applicant and then conduct an individualized assessment. The problem with that 

position is that it is terribly inefficient and opens the door to a new set of problems. If a 

company needs to hire someone quickly and is leery about hiring someone with a criminal 

 49 Id. at 19-20. 50Id. at 20.
298 Commissioners’ Statements

record, they already have to wait a few days for a background check to be conducted. If the

report indicates that the person has a criminal record, the company then has to apply the

Green factors and conduct an individualized assessment, which basically amounts to a

second interview. In the meantime, the company is shorthanded, which can be a major

problem when, for example, hiring holiday help.

The individualized assessment also creates the possibility of being sued for disparate

treatment instead of disparate impact. Disparate treatment suits could manifest in two ways.

First, a minority applicant could sue claiming that they were treated differently than a white

applicant. Even if an inexperienced hiring manager treated two applicants differently for a

consciously innocent reason – i.e., they developed a better rapport with one candidate than

the other – the mere fact that the process wasn’t uniform exposes the company to a disparate

treatment suit. Second, in an attempt to avoid a disparate impact suit, an employer could

preferentially hire minority applicants instead of white applicants, thus creating an

opportunity to be sued by white applicants. The purpose of having set hiring policies is to

avoid discriminatory treatment by ensuring that all applicants are treated the same way. As

EEOC Commissioner Lipnic said in a speech to the Chamber of Commerce, companies long

thought that the best 10 practice was to have policies in place to treat everyone the same way.

That new Guidance turns that longstanding approach on its head.51

Admittedly, Ms. Miaskoff denied at the briefing that an individual assessment is

required.52

51 Victoria Lipnic, Commissioner, Equal Employment Opp’ty Comm’n, Keynote Address at the U.S. Chamber

of Commerce: A View from the EEOC,

 We take her at her word. However, due to the plain language of the Guidance,

businesses will likely fear adverse consequences if they do not conduct an individualized

assessment. The average hiring manager has never heard of Carol Miaskoff, let alone that she

http://link.brightcove.com/services/player/bcpid1062994879001?bckey=AQ~~,AAAAEkkpZUk~,X1iY6-

4YH0xD1Wm6DlVB4kWeHRwgu8hA&bctid=1505101556001, at 1:03:50 (March 13, 2012).

You know, it used to be the case, when I started doing employment law twenty years ago, that

everyone was taught, particularly human resources professionals, 'Treat everyone the same.

That's how we want to make sure that there is non-discrimination in the workplace.' I think

we're at a bit of an inflection point on that principle, particularly when it comes to issues like

using a criminal background check or a credit screen in your hiring process, because even if

you have a policy in place that meets the Title VII standard, what you also have to show and

demonstrate is some due process for the individual. So there has to be some sort of

individualized assessment, which is a term - for those of you who are familiar with the

Americans with Disabilities Act (you can also thank Randy Johnson for his handiwork on the

ADA), but an individualized assessment is something that you also have to look at in the

context of using criminal background checks. So if you have a policy where you look at the

nature of the offense, maybe again it's not "all felons are prohibited," but you get the

background report in and if you do not as an employer have a policy in place or procedures in

place where you in fact allow someone to explain what the situation was, maybe it was a

situation similar to the facts in the El v. SEPTA case in the Third Circuit, but you have to be in

a situation where you are assessing that risk on a more individualized basis. Now, I know that

that is not particularly comforting, because it is much easier to have a blanket rule and a

blanket policy and a bright line and that makes it easier. It will not necessarily though meet

the standards of, one, nondiscrimination in the workplace, and two, what we care about,

which is equal employment opportunity in the workplace. 52 Report at 33.
Criminal Background Checks and the EEOC’s Conviction Records Policy 299

told the U.S. Commission on Civil Rights that an individual assessment is unnecessary. A 

hiring manager knows that the Guidance says: “Title VII thus does not necessarily require 

individualized assessment in all circumstances. However, the use of individualized 

assessments can help employers avoid Title VII liability....”53 The average layperson who 

reads that an individual assessment is not necessarily required in all circumstances will 

reasonably infer that an individualized assessment is highly advisable in most circumstances. 

This is an important departure from the previous Guidance.

The EEOC claims that the goal of the Guidance is not to discourage the use of 

criminal background checks, but merely to encourage companies to use them judiciously. 

However, the EEOC’s guidelines for judicious use of criminal history in hiring are so opaque 

and nebulous that it is very difficult for employers to be sure that they are following the rules. 

If they obtain a criminal background check on an applicant, they are immediately on the 

defensive if the EEOC decides to open an investigation.54

obtain a criminal background check on prospective employees. If you never had the 

information, then you won’t find yourself in the position of bickering with the EEOC over 

whether you properly went through every laborious step.

A rational company could easily 

decide it is safer not to even

III. The Lack of Safe Harbor for Compliance with Conflicting State and 

Local Laws Puts Employers in an Untenable Position.

An additional problem with the Guidance is its lack of safe harbor for businesses that 

are prohibited from hiring ex-offenders by state law. Businesses are warned not to comply 

with state or local laws prohibiting such hires if doing so would run afoul of the Guidance.55

Practically speaking, the Guidance’s lack of safe harbor places businesses in the 

unenviable position of choosing whether to be put out of business by the state or the EEOC. 

If a business owner in good faith believes that a state hiring prohibition falls afoul of the 

Green factors and subsequently hires an ex-offender, he may lose his business license. If he 

decides that surely, it is job-related and consistent with business necessity for him to only 

However, business owners are not in a position to apply the Green factors to a state law. The 

idea that they should do so is ludicrous. A small construction contractor is not in a position to 

look at state requirements regarding employment of ex-felons and determine whether they 

conform to the Green factors. And if the contractor decides the state requirements do not 

meet the standards of the Green factors and hires an ex-felon anyway, the state contracting 

board is unlikely to be impressed with his display of legal acumen.

 53 Guidance at 14. 54 Id. at note 64.

The Commission presumes that employers use the information sought and obtained from its applicants 

and others in making an employment decision. See Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403 

(C.D. Cal. 1970). If an employer asserts that it did not factor the applicant’s or employee’s known 

criminal record into an employment decision, the EEOC will seek evidence supporting this assertion. 

For example, evidence that the employer has other employees from the same protected group with 

roughly comparable criminal records may support the conclusion that the employer did not use the 

applicant’s or employee’s criminal record to exclude him from employment. 55 Guidance at 24.
300 Commissioners’ Statements

hire non-offenders since doing otherwise would cost him his license, he has run afoul of the 

EEOC. And contra very sensible suggestions made by some of my colleagues56, both the 

EEOC Guidance and EEOC Commissioner Feldblum are clear on this point. According to 

the Guidance:

States and local jurisdictions also have laws and/or regulations that restrict 

or prohibit the employment of individuals with records of certain criminal 

conduct. Unlike federal laws or regulations, however, state and local laws or 

regulations are preempted by Title VII if they “purport[] to require or permit 

the doing of any employee’s known criminal record into an act which would 

be an unlawful employment practice” under Title VII. Therefore, if an 

employer’s exclusionary policy or practice is not job related and consistent

with business necessity, the fact that it was adopted to comply with a state or 

local law or regulation does not shield the employer from Title VII liability. 

(citations omitted)57

In her public comment to the Commission, EEOC Commissioner Feldblum agrees 

that the Guidance could be improved with regard to “the intersection of Title VII and state 

laws that require the use of background checks for certain professions.” However, “the 

Commission is not in a position to offer blanket ‘safe harbors’ to employers....especially 

when the statutory language regarding liability for compliance with state laws which ‘purport 

to require or permit the doing of any [sic] which would be an unlawful employment practice 

under Title VII’ is so explicit.”58 One could argue that a state is unlikely to require an 

exclusion for reasons that are not job-related and consistent with business necessity, but there 

is no guarantee that the EEOC will agree with the state’s analysis that a particular exclusion 

is job-related and consistent with business necessity. In fact, Example Twelve in the 

Guidance is about a county requirement that prohibits anyone with a criminal conviction 

from working for the county and that therefore violates the Guidance.59

 56 Report at 94-95.

Most people would 

agree that the exclusion in Example 12 is too broad, but that will be cold comfort to a small 

Chairman Castro:

Presumably these state laws that require background checks in certain instances are doing it

because they feel in those instances there is a business necessity, is that not right? And that it 

is consistent with the job so it's job related, right? So that would seem to me that in those 

instances the issue of Title VII liability would not be there because they're allowing you to do 

the background check. They're not saying you can't at the federal level. As long as it's 

consistent with business necessity and job related it's not violating Title VII.

So I don't understand where that conflict resides, because presumably if you do the 

background check you're going to do it for those reasons. You're not going to do a 

background check that's not going to be job related, right, and that has nothing to do with 

business necessity, right? 57Guidance at 24.

58 Chai Feldblum, Commissioner, Equal Employment Opp’ty Comm’n, “The Impact of Criminal Background 

Checks and the EEOC’s Conviction Records Policy on the Employment of Black and Hispanic Workers,” U.S. 

Comm’n on Civil Rights, at 3 (Dec. 7, 2012).

59Guidance at 24.
Criminal Background Checks and the EEOC’s Conviction Records Policy 301

business owner with a county contract who is trapped between a similar requirement and the 

Guidance.

Furthermore, it appears that the EEOC is acting in accordance with the Guidance’s 

warning that a state requirement will not provide safe harbor. Julie Payne testified before the 

Commission that local law required G4S to conduct background checks on applicants, but the 

EEOC continued its investigation anyway.60

IV. The Real Motivation for the Guidance is that African-American and 

Hispanic Men are Disproportionately Likely to Have Criminal Records, 

Which the Guidance Implies is Due to Unlawful Racial Discrimination. 

This is False.

An additional problem with the Guidance is that the EEOC’s real disparate impact

preoccupation is the fact that African-American and Hispanic males are arrested and 

convicted at higher rates than are white males. The Guidance says:

Arrest and incarceration rates are particularly high for African American and

Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 

to 3 times their proportion of the general population. Assuming that current

incarceration rates remain unchanged, about 1 in 17 White men are expected 

to serve time in prison during their lifetime; by contrast, this rate climbs to 1 

in 6 for Hispanic men and 1 in 3 for African American men (citations 

omitted).61

In her written comment to the Commission, EEOC Commissioner Chai Feldblum 

writes, “[T]he disparate impact that we first noted in the 1970’s was continuing unabated 

and, in some ways, was becoming worse. As our Revised Guidance states, African 

Americans and Hispanics are arrested in numbers disproportionate to their representation in 

the general population.”62 Her fellow EEOC Commissioner Victoria Lipnic writes, “[W]e 

have today a greater understanding of the demographics of our criminal justice system –

indeed, current data on incarceration rates and the criminal justice system more broadly show 

a marked racial disparity in arrests and convictions.”63 The EEOC’s main concern is that 

African-Americans and Hispanics are more likely to have a criminal record. This concern 

was echoed by panelists Glenn Martin and Roberta Meyers.64

The assumption in the Guidance, EEOC Commissioner Feldblum’s comment, and the

panelists’ statements is that the racial disparity in arrests and convictions is attributable to 

racial discrimination. The panelists explicitly stated as much. Roberta Meyers stated, 

 60 Report at 66-67. 61Guidance at 3.

62Feldblum at 2.

63 Victoria Lipnic, Commissioner, Equal Employment Opp’ty Comm’n, “The Impact of Criminal Background

Checks and the EEOC’s Conviction Records Policy on the Employment of Black and Hispanic Workers,” U.S.

Comm’n on Civil Rights, at 2 (Dec. 7, 2012).

64 See Martin Statement at 197; see also Meyer Statement at 219.
302 Commissioners’ Statements

“[P]eople of color are significantly and disproportionately represented in the criminal justice 

system, and [] a criminal record has become a surrogate for race-based discrimination.”65

Glenn Martin said in his statement, “Over the years, race- and class-biased policy-making 

has successfully been hidden in the midst of a culture of low tolerance and fear of 

crime....we must deal with the racism proxy we have created with our burgeoning criminal 

justice system.””66

The facts do not support the panelists’ assertions that the American criminal justice

system is an unjust system of racial oppression.67 African-Americans and Hispanics are more

likely to commit crimes than are members of other ethnic groups, and therefore there is no 

great unfairness in their greater representation in the ranks of ex-offenders. As Jeffrey 

Sedgwick testified at the Commission’s hearing, several decades of scholarly research 

indicate that African-Americans and Hispanics are disproportionately likely to come in 

contact with the criminal justice system because they are disproportionately likely to be 

involved in criminal activity.68

Earlier in his career, Dr. Blumstein specifically addressed the possibility that differing

incarceration rates were attributable to racial discrimination, noting that the disproportionate

incarceration of African-American men “generate[s] a deep concern that the 

disproportionality may be a consequence of profound racial discrimination within the 

criminal justice system.”69 After analyzing arrests and convictions, Dr. Blumstein concluded 

that differential rates of involvement in crime, not racial discrimination, were the primary 

reason for the disproportionate incarceration of African-Americans.70 His findings are 

supported by over twenty years’ worth of research.71

Ex-offender status is therefore markedly different from race or sex, which are both 

immutable characteristics. A person is not born a criminal. He chooses to engage in criminal

activity. Our legal system is not perfect, and discrimination surely exists, but there is little

evidence it is systematically biased against minorities.

V. The Guidance Will Harm the Employment Prospects of Those it Purports

to Help, Both Non-offenders and Ex-offenders.

The icing on the cake is that the Guidance will likely hurt the job prospects of 

members of minority groups who do not have criminal records. As Professor Harry Holzer 

 65Report at 49.

66See Martin Statement at 197-198. 67 See id. at 197-198, 200-201; see also Meyer Statement at 220. 68 Sedgwick Statement at 255-57. 69 Alfred Blumstein, On the Racial Disproportionality of the United States’ Prison Populations, 73 J. CRIM. 

LAW & CRIMINOLOGY 1259, 1261 (1982).

70 Id. at 1270, 1278. 71 See Patrick A. Langan, Racism on Trial, 76 J. CRIM. L & CRIMINOLOGY 666 (1985); see also Robert J. 

Sampson and Janet L. Lauritsen, Racial and Ethnic Disparities in Crime and Criminal Justice in the United 

States, 21 CRIME AND JUSTICE 311 (1997); Amy L. Wax, RACE, WRONGS, AND REMEDIES: GROUP 

JUSTICE IN THE 21ST CENTURY 78 (2008).
Criminal Background Checks and the EEOC’s Conviction Records Policy 303

testified, the use of criminal background checks increases employment among AfricanAmerican men without criminal records.72 Professor Holzer’s research is supported by 

research conducted by Shawn Bushway, Michael Stoll, and Steven Raphael. Multiple studies 

have shown that access to information regarding criminal history is correlated with increased 

employment and wages among African-American men. Raphael writes, “[T]he data strongly 

indicate that establishments that check are consistently more likely to hire African-American 

males.”73 Raphael’s research also found that businesses legally prohibited from hiring 

employees with criminal records are more likely to hire African-Americans.74 This also 

supports the argument that reducing the use of criminal background checks will harm the job 

prospects of many African-Americans.

Panelist Glenn Martin objected strongly to the argument that utilization of 

background checks increases the employment of African-Americans overall, saying, 

“[W]innowing out black applicants....to find the good black applicants from the bad black 

applicants feels very un-American to me.”75 Although everyone agrees that ex-offenders 

should have the opportunity to find gainful employment, Mr. Martin’s reaction misses the 

point. Every hiring process consists of “winnowing through applicants” to find the best 

person for the job. In the case of ex-offenders, the employer may believe that a particular 

criminal history is pertinent to whether someone is the best person for the job. If they are 

discouraged from obtaining that information, they may simply avoid everyone they think 

might have a criminal history, whether that means avoiding most African-American males or 

all white males with shaved heads and visible tattoos. Mr. Martin has it exactly backwards 

when he says that “criminal record-based discrimination easily serves as a surrogate for racebased discrimination.”76 The fact that more African- Americans are hired when employers 

utilize criminal background checks indicates that in the absence of better information, 

employers use race as a proxy for criminal history, not vice versa.77

It is better by far to encourage employers to use reputable background check 

companies to obtain as much information as possible about each person’s criminal history or 

lack thereof so they can have confidence in their hiring decisions, rather than making 

erroneous generalizations based on his race and sex.78 If this results in fewer job 

opportunities for ex-prisoners, that is very unfortunate on an individual level, but given the 

sixty percent recidivism rate, one cannot say that employers are acting irrationally. A 

recently released prisoner is more likely to recidivate than not. That alone is a rational 

tiebreaker between an ex-offender and a non-offender.

In some cases, discouraging employers from using criminal background checks may 

even harm the employment prospects of ex-offenders. Many employers are willing to hire an 

 72 Holzer Statement at 177. 73Raphael, supra note 12, at 4. 74Id. at 23. 75Report at 53.

76 Id. 77 Unfortunately, it may be rational, albeit illegal, to discriminate on the basis of race in the absence of criminal 

history information. See Lior Jacob Strahilevitz, 75 U. Chi. L. Rev. 363 (2008). 78 Id. at 371-73.
304 Commissioners’ Statements

ex-offender, but only if they know the person’s criminal history and are able to assess the 

risk of hiring that person. Therefore, it should not come as a surprise that

employers who indicate that their willingness to hire ex-offenders depends on 

the crime are more likely to check than even unwilling employers....the 

evidence...is consistent with the idea that some firms check to gain 

information and not necessarily to exclude altogether the hiring of exoffenders.79

VI. Statutory and Procedural Problems with the Adoption of the Guidance

There are also significant problems surrounding the adoption of the guidance. It is

doubtful that the EEOC has the statutory authority to issue guidances that have the effect of

rules. The process surrounding the adoption of the Guidance also suggests that the EEOC had

arrived at a preordained conclusion about what it would issue, and therefore sought little

input from people who were opposed to its decision.

a. The New Guidance Exceeds the EEOC’s Authority.

The basic problem with the EEOC’s guidance is that the EEOC is exceeding its 

authority. The EEOC does not have rulemaking authority. As we have noted before, 

Congress deliberately withheld rulemaking authority from the EEOC.80 Yet the attorneys of 

the EEOC fell prey to the all-too-human temptation to arrogate power, and with unshakeable 

faith in the justice of their cause, they transformed “guidances” into de facto regulations.

At this point, the EEOC and its defenders will likely protest that the agency has done 

no such thing. But the effect of the Guidance is indistinguishable from that of a rule. A 

company that the EEOC believes has run afoul of the Guidance will find itself subject to an 

expensive and lengthy investigation. If litigation results, the process becomes even more 

painful. Julie Payne testified that as part of its investigation of G4S Security Solutions’ use of 

criminal background checks, the EEOC required G4S to provide information about every 

person who was employed by or applied for employment with G4S since 1958.81 Even if 

litigation never results, such an investigation is a punishment in and of itself. The cost of 

complying with the investigation alone could easily bankrupt small companies.

b. The Process Surrounding the Adoption of the Guidance was Opaque.

The EEOC is correct that the Guidance can be distinguished from a regulation in one 

way, other than its lack of congressional authorization. The Guidance is not subject to the 

same notice and-comment requirements as are regulations. The EEOC held two public 

hearings on the proposed guidance, but the hearings were dominated by witnesses who 

 79 Michael Stoll & Shawn D. Bushway, The Effect of Criminal Background Checks on Hiring Ex-Offenders 21-

22.

80 See Brief for Heriot et al., supra note 2, at 1-11. 81 Statement of Julie Payne at 243.
Criminal Background Checks and the EEOC’s Conviction Records Policy 305

supported increasing the stringency of the Guidance. Furthermore, the EEOC never released 

a draft of the Guidance for members of the public to read and comment upon. Instead, the 

EEOC released the text of the Guidance and passed it on the same day. At least when 

agencies are bound by notice-and comment requirements, the public knows what is contained 

in the regulations on which they are commenting. In this case, the public could only make 

general comments about the usefulness or failings of using criminal background checks in 

hiring.

Admittedly, the EEOC Commissioners did meet with interested parties to discuss 

drafts of the Guidance. But there are constraints on commissioners’ time, and they cannot 

meet with everyone who is interested. The EEOC should have released draft guidance to the 

public. A policy change of this magnitude, which affects every business with over fifteen 

employees, should be the subject of a vigorous public debate. The ability to read and 

comment upon the draft of a policy that will affect so many people should not be limited to 

those companies that have the financial resources to hire expensive attorneys. And as Lucia 

Bone pointed out, the EEOC was not interested in hearing from groups representing victims 

of crime.82 Given that we are all potential crime victims, it would seem to be incumbent upon 

the EEOC to at least invite such a group to testify. Also, based upon the large number of 

comments received by this Commission supporting the widespread use of criminal 

background checks, this seems to be an issue that members of the public care about when 

they are aware that it is under discussion.

VII. The Guidance Has No Limiting Principle

An additional problem with the Guidance is that it has no limiting principle. The 

EEOC exercises sweeping enforcement power and is only constrained by the courts. There is 

nothing within the Guidance itself that prevents it from being applied to any company that is 

not prohibited by federal law from hiring an ex-offender for a particular position. The EEOC 

is second-guessing employers’ hiring decisions on the basis of a characteristic that is not 

protected by Title VII. Even if the racial composition of a workplace mirrors the racial 

composition of the surrounding available workforce, the employer is not protected from a 

disparate impact suit.83 Nor does the Guidance have any sort of bright-line rule that allows an 

employer to have confidence that it is in compliance. The Guidance does not even allow an 

employer to have a bright-line rule that they will not hire anyone convicted of rape or 

murder. Instead, the Guidance is designed to allow the EEOC to force businesses – even 

those that believe they are in compliance – to preferentially hire ex-offenders.84

Conclusion

No one wants a truly reformed ex-offender to be forever unemployed. The question is

whether this Guidance is the best way, or even a reasonable way, of increasing employment

among ex-offenders. The EEOC should also remember that employers’ interests should be 

 82 Report at 55, 77. 83 Guidance at 10. 84 See Lipnic, supra note 51.
306 Commissioners’ Statements

taken into account as well. After all, they are not the ones who broke the law. “I was 

complying with the EEOC’s Guidance” is not much of a defense in a negligent hiring 

lawsuit. Although the Guidance does not prohibit the use of criminal background checks, it 

strongly discourages their use and encourages employers to err on the side of hiring exoffenders. In many cases, the Guidance encourages employers to hire an ex-offender against 

their better judgment. If that were not so, employers would be leaping to hire ex-offenders 

without being prodded by the EEOC. Whether the employer fears the ex-offender will steal 

from the business or harm a customer, it is foolish to push him to override his judgment, 

especially when sixty percent of ex-offenders will recidivate.

EEOC Commissioner Lipnic and Ms. Miaskoff both portrayed this guidance as a 

mere refinement of the 1987 Guidance, rather than a sharp departure. But then why would 

EEOC Commissioner Lipnic state that a blanket rule against hiring felons would no longer be

permissible? That is a sharp departure from previous practice. Additionally, the effort the 

EEOC has put into publicizing this Guidance, taken in conjunction with the many lawsuits it 

has filed over the last few years regarding the use of criminal history in hiring, suggests that 

the EEOC will be interpreting and enforcing the Guidance more aggressively than it has in 

the past. 85

The EEOC and various groups representing ex-offenders will argue that a criminal 

record should not be a life-long scarlet letter. If ex-offenders cannot find employment, they 

are more likely to reoffend. Fair enough. But the burden of rehabilitation shouldn’t fall on 

private companies. If a company believes that an applicant is the best person for a job 

regardless of their criminal record, they will hire them. If they wouldn’t hire the person with 

a criminal record but for the fear of an EEOC investigation, the employment market is 

distorted and a cost is imposed on the company. Griggs imposes this sort of regime on 

companies with regard to race and the use of tests and education requirements, but at least 

Title VII was clearly enacted to prohibit racial discrimination. Despite the Guidance’s 

invocation of disparate impact theory, the main goal is to increase the employment of exoffenders. Title VII was definitely not enacted to prohibit discrimination on the basis of 

criminal history. If the country wants to shift the cost of criminal rehabilitation onto private 

employers, Congress should pass a statute prohibiting discrimination on the basis of criminal

history.86 Otherwise, this is outside the EEOC’s purview.

The Guidance will have other costs too. For small companies that have the resources 

to hire attorneys, figuring out how to comply with the Guidance will cost several thousand 

dollars – money that could have been used to hire a new employee. For large companies, 

 85 Report at 12-13. 86 We believe such a statute would be unwise. Rather, it is perhaps preferable to encourage employers to hire 

exoffenders by offering tax credits for doing so. The employer is unlikely to take a large risk for a mere tax 

credit, but such a tax credit could be an effective tiebreaker between a non-offender applicant and an otherwise 

similarly qualified ex-offender applicant; see Strahilevitz, supra note 77, at 379-380. Such an approach ensures 

that the cost of reintegrating ex-offenders is spread across society as a whole, rather than being concentrated on 

individual employers. We also believe that encouraging employers to conduct criminal background checks in 

order to obtain as complete a picture as possible of the ex-offender could be helpful.
Criminal Background Checks and the EEOC’s Conviction Records Policy 307

complying with the Guidance will add another level of inefficiency to hiring. In an effort to 

avoid the eye of the EEOC, companies may avoid using background checks and simply hire 

only the number of blacks they need to avoid scrutiny – and no more. The EEOC seems to 

live in a magical world where forcing employers to hire a person they do not want to hire 

because he may be untrustworthy or dangerous has no costs. But just because the EEOC does 

not see the cost doesn’t mean it doesn’t exist.

***
308 Commissioners’ Statements

Statement and Rebuttal of Commissioner Gail Heriot

I. Introduction

A desire to lend a helping hand to those who need it—including ex-offenders—is 

commendable. But as most of us learn sooner or later, helping others is not always as easy as 

it seems—especially when increased government regulation is the only tool as one’s

disposal. While there are some worthy ideas out there, unworthy ones are far more common. 

This briefing was about an especially ill-considered idea—the EEOC’s policy on 

criminal background checks, particularly as reflected in its 2012 Guidance. This policy will 

almost certainly do more harm than good.1 Moreover, there is a strong argument—and I 

believe a meritorious one—that because the criminal background check policy is based on a 

disparate impact liability, it violates the U.S. Constitution—at least in the form it is 

administered today.2

Bad federal regulatory ideas—even when they are constitutional—can do a great deal 

of damage. In that respect, they are unlike many garden-variety bad ideas. If a business 

owner makes a mistake about what his customers want, competitors will likely take 

advantage of the error, and his business will suffer. With any luck, the business owner will 

learn from the experience and attempt a course correction. If not, his business will likely 

shrink or disappear altogether. But the collateral damage to the supposed beneficiaries of his 

bad idea is often minimal.

Government regulatory policies, on the other hand, tend not to be so isolated in their 

impact. When the EEOC tells employers that they risk liability for race discrimination if 

they reject job applicants on account of their criminal records, that action will have effects 

from Maine to the Midway Atoll. The self-correcting mechanism that works (albeit 

imperfectly) when a small business owner makes a mistake tends not to work nearly as well 

in the regulatory context. The most tempting course of action for a federal bureaucrat who 

has erred is often to deny that a mistake has been made and push ever forward. 

Of course, it is not my intent to be dismissive about the very real problem of 

integrating ex-offenders into the job market. But there are good ways and bad ways to 

encourage employers to hire ex-offenders, and the EEOC has been pursuing a bad way.

For contrast, consider the Work Opportunity Tax Credit Program. See Small 

 1

 See infra at Part IV. See also infra at Part III (discussing how disparate impact liability deviates substantially 

from what Congress intended when it passed the original version of Title VII).

2

 See infra at Part V.
Criminal Background Checks and the EEOC’s Conviction Records Policy 309

Business Job Protection Act, Pub. Law 104-188 (1996).3

 Under that program, employers 

who choose to hire a qualified ex-felon get a small tax credit. No one is forced or threatened 

with litigation to participate. Those businesses that perceive themselves as benefiting from 

the arrangement will be the ones that take advantage of it. Eligibility and other ground rules 

are clearly defined, so no one need be confused about what the law permits.

Employers have many things to worry about when they hire. All of them are 

vulnerable. If they make a wrong choice, they can wind up with someone who is 

undependable, difficult to work with or incompetent. A bad employee can steal from the 

employer, harass fellow employees, drive away the customers, and cause devastating harm.4 

Employers can end up legally responsible for the actions of their employees under doctrines 

of negligent hire or supervision, respondeat superior and actual or apparent authority. The 

need to fire an employee often brings lawsuits and thus must be avoided where possible. No 

wonder employers are sometimes hesitant to hire. Policymakers need to avoid making them 

more hesitant. 

But that doesn’t mean that no employer will find hiring ex-offenders an attractive 

option. Jobs vary immensely. Some provide the employee with very little opportunity for 

wrongdoing; others can be made that way by adding a little extra supervision. Individuals 

with criminal records vary immensely too. There are some whose integrity is not open to 

serious doubt; there are others who will likely do well when working with colleagues who 

are aware of their weaknesses and sensitive to the need to avoid creating problems. A 

modest tax credit can be a useful tool to persuade an employer who is considering hiring an 

ex-offender but has not yet taken the plunge. In the long run, if administered properly, this 

program can reduce crime and save the taxpayer money.5

The Work Opportunity Tax Credit Program allows the employers who are in the best 

position to offer employment to ex-offenders (or to a particular ex-offender) to self-select. 

Some employers may find that they are in a good position to hire a large number of exoffenders; others may prefer to hire none. The latter group won’t have to worry about their 

ability to prove to the satisfaction of any government bureaucrat that they had good reason 

for their decision; instead, they simply won’t be able to enjoy the tax credit that employers 

who make the opposite decision will enjoy. The important thing is that the decision will be 

made by individuals who are intimately familiar with the actual job and job applicant at issue 

and have an incentive to make the right decision instead of by far away bureaucrats and 

judges, who have no such familiarity with the situation. 

 3 The Work Opportunity Tax Credit Program was originally set to expire on September 30, 1997. 110 Stat. 

1772. It has been revised and extended on several occasions, most recently the American Taxpayer Relief Act, 

Pub. L. 112-40 (2012).

4 See Employee Kills 8, Himself in Connecticut Shooting Rampage, L.A. TIMES (August 4, 2010).

5 I do not mean to suggest that the tax code is an instrument to which Congress should routinely resort to 

achieve goals that are unrelated to revenue raising. It should be used sparingly for that purpose.

 
310 Commissioners’ Statements

II. The EEOC’s Policy on Criminal Background Checks

The EEOC’s policy has none of the virtues of the Work Opportunity Tax Credit 

Program. The 2012 Guidance ham-fistedly discourages all employers from checking into the 

criminal backgrounds of its job applicants and from acting on the information they obtain if 

they do. Because acting on criminal background checks is thought to have a disparate impact 

on African-American and Hispanic employees, employers are instructed that they must be 

able to demonstrate a “business necessity” for doing so. But the so-called guidance provides 

almost no actual guidance to employers on what constitutes “business necessity.”6

 6

 It is worth emphasizing that the applicable legal standard is not reasonableness, but “business 

necessity.” Nobody knows for sure what that means—at least not since the Civil Rights Act of 1991. Some 

have argued for an extraordinarily high standard. For example, William & Mary law professor Susan Grover 

has stated:

 Most 

The overarching issue continues to be whether the term ‘necessity’ in the business necessity 

defense literally requires that the discriminatory practice be essential to the continued viability 

of the business, or whether it requires something less. This Article argues for the former 

interpretation.

Susan Grover, The Business Necessity Defense in Disparate Impact Employment Discrimination Cases, 30 Ga. 

L. Rev. 387 (1996). See also id. at 429 (“That defense [the business necessity defense] should require an 

employer to prove that its discriminatory practice is essential to its continued operation. Under the structure 

created by the 1991 Act, an employer must prove that the goal it seeks to achieve through the practice is crucial 

to its continued viability and, in turn, that the practice selected is crucial to the achievement of that goal. ... 

Alternatives to this standard thwart the objectives of Title VII by disproportionately favoring defendants.”). 

Professor Grover clarifies her use of the term “continued viability” by stating that it means that 

“relinquishing the discriminatory practice will compel the employer to cut back on its business, resulting in 

employee layoffs.” Id. at n. 5. That is quite a standard—particularly when applied to criminal background 

checks. The problem with hiring an ex-offender is that it increases the risk to the employer, her employees, her 

customers and her property. It will seldom be the case that she can prove ex ante that it “will compel” her “to 

cut back” on her business, “resulting in employee layoffs.” She may well be able to prove beyond any shadow 

of a doubt that she is being reasonable, but that is not the standard.

One thing everyone seems to agree on is that the 1991 Act and the case law that preceded it are 

ambiguous. Oklahoma City University law professor Andrew Spiropoulos describes the problem this way:

[T]he [Supreme] Court articulated two very different versions of the business necessity defense: a 

strict one that would be very difficult for employers to meet and a lenient one that would give 

employers more discretion. ... [T]hose who contend that the Act establishes a strict business 

necessity defense and those who argue that the Act enacted the more lenient business necessity 

defense both have plausible arguments for their interpretations founded in two different lines of 

Supreme Court precedent. ... [N]either side can conclusively show that their interpretation was 

embodied in the Act.

Andrew Spiropoulos, Defining the Business Necessity Defense to the Disparate Impact Cause of Action: 

Finding the Golden Mean, 74 N.C. L. Rev.1478, 1483-85 (1995). As Professor Spiropoulos describes, this 

ambiguity was built into the Act by Congress. Id. Put simply, Congress punted. It left the issue to be decided 

in future litigation.

For its part, the EEOC has studiously avoided coming down clearly on this issue—perhaps out of 

concern that a court would come down clearly in the other direction. Its enforcement strategy—especially its 
Criminal Background Checks and the EEOC’s Conviction Records Policy 311

employers will be at sea. Even employers who decline to hire job applicants with criminal 

records because they are required to do so by state law are warned that they may or may not 

be opening themselves up to a lawsuit.7

 If the fact that state law commands an employer to 

act in a particular way is not enough to establish “business necessity,” then it is doubtful that 

any employer could ever know for sure that it can decline to hire an employee on the basis of 

his criminal record. 

No doubt, some employers will err on the side of not doing criminal background 

checks at all in order to avoid having to sink time and money into figuring out this very 

complex and ambiguous guidance. Some of those will later regret that decision. Others will 

undertake the background checks, but will be careful—against their better judgment—not to 

act on them in some cases in order to demonstrate their compliance with the 2012 Guidance. 

Some of these employers will also come to regret their decisions.

Insofar as the EEOC’s recent pattern of enforcement provides additional guidance for 

worried employers, it is ill-conceived guidance. The EEOC has targeted employers whose 

line of work is sensitive enough that the need for clean criminal records should be viewed as 

an obvious business necessity. That the EEOC would pursue employers like G4S—a 

provider of security personnel—is strong evidence of the agency’s overreach on this issue.8

 

singling out of a security guard company, G4S, for investigation—demonstrates that it regards the standard as 

very high. Employers who hope to avoid becoming ensnared in litigation must act accordingly. 

 

7 One of the most astonishing assertions in the draft Statement of Commissioners Kladney and Achtenberg was 

this:

Despite the frequent references to employers being apoplectic over the potential demands of federal 

and state law, no one at the briefing could cite a case in which an actual employer found himself 

threatened with a federal lawsuit as a result of his scrupulous compliance with state law, or 

threatened with a state or local enforcement action as a result of scrupulous compliance with EEOC 

guidance concerning criminal records.

Draft Statement of Commissioners Achtenberg and Kladney at 2 (boldface and underlining in original). But 

Julie Payne of G4S, a major provider of security personnel to the business world, testified at our briefing that 

Pennsylvania law requires that unarmed security officers submit to criminal background checks and that the 

EEOC’s investigation of her employer threatens litigation when G4S complies with that law. Testimony of 

Julie Payne at 8. See also James Bovard, Perform Criminal Background Checks at Your Peril: A Federal 

Policy Intended to Help Minorities is Likely to Have the Opposite Effect, WALL ST. J. (Feb. 14, 2013).

Has the EEOC threatened litigation against other employers merely for complying with state law? We may 

never know. The EEOC keeps its investigations (and hence its threatened litigation) secret—even from the 

Commission. See infra at note 32. As I indicate in that footnote, I believe the EEOC has an obligation to 

cooperate with the Commission, which is charged with oversight of federal enforcement of civil rights laws like 

Title VII.

Meanwhile, Texas recently filed a lawsuit in federal court against the EEOC for the EEOC’s role in instructing 

employers that the 2012 Guidance trumps Texas laws requiring criminal background checks. See Complaint in 

Texas v. EEOC, Case 5:13-cv-00255-C (N.D. Tex. filed Nov. 4, 2013). 8 The investigation of G4S is not the only case of overreach on the part of the EEOC. See EEOC v. 

Peoplemark, 2011 U.S. Dist. LEXIS_38696 (W.D. Mich. 2011), aff’d __ F.3d __ (6th Cir. Oct. 7, 2013) (lawsuit 

brought against company for its criminal background policy where EEOC wrongly accused employer of having 
312 Commissioners’ Statements

This increases the likelihood that some employers will err on the side of not doing criminal 

background checks (or not acting upon them) even when doing so would have been a 

“business necessity” under any reasonable interpretation of that standard. Instead of helping 

to place ex-offenders in right jobs, this approach will put ex-offenders in the wrong jobs. 

Moreover, to substitute for criminal background checks, some of these employers may be 

tempted to avoid hiring job applicants about whom they have the slightest suspicion. The 

result, perversely, may be more racial discrimination rather than less.

But here’s the aspect that concerns me most: The EEOC’s 2012 Guidance and its 

recent pattern of enforcement may be more aggressive than what we have seen before, but it 

was not exactly a bolt from the blue. The notion that Title VII prohibits employers from 

conducting criminal background checks on job applicants unless the employer can convince a 

court that it is acting from business necessity arguably follows from Griggs v. Duke Power 

Co., 401 U.S. 424 (1971). In that forty-two-year-old case, the Supreme Court followed the 

EEOC’s urging and adopted disparate impact liability, which holds that liability under Title 

VII does not require that the defendant employer be motivated by race, color, religion, sex or 

national origin. Instead, under Griggs, if an employer requires its job applicants to have 

qualifications that have a disparate impact on women or racial minorities (e.g. high school 

diplomas), it must be able to demonstrate to the satisfaction of the court that the qualification 

is job-related and that the employer is acting from business necessity. This was a stunning 

misinterpretation of the 88th Congress’s intent in passing Title VII in 1964, made worse by 

the fact that Congress acquiesced in this bad policy when it passed the Civil Rights Act of 

1991 (which amended Title VII). See infra at Part V.9

Not long after Griggs, the U.S. Court of Appeals for the Eighth Circuit applied its 

logic to criminal background qualifications. It took the position endorsed by the EEOC that 

Griggs requires an employer who refuses to hire a job applicant on account of his criminal 

record to demonstrate business necessity for its action. Neither conscious nor unconscious 

 

more stringent policy than it in fact had); EEOC v. Freeman, 2013 U.S. Dist. LEXIS 112368 (D. Md. 2013) 

(court rejected testimony of EEOC experts, concluding that: “The story of the present action has been that of a 

theory in search of facts to support it. But there are simply no facts here to support a theory of disparate impact 

resulting from any identified, specific practice of the Defendant”). In Peoplemark, the trial court ordered the 

EEOC to pay Peoplemark $751,942.48 in attorneys’ fees, expert witness fees, and other costs. Freeman was 

also dismissed. Win or lose, however, employers who get sued are worse off—even when they are 

compensated for their attorneys’ fees and costs. Many, like PepsiCo, would prefer to settle prior to litigation 

rather than wind up in costly and time-consuming litigation. See, e.g. Pepsi to Pay $3.13 Million and Made 

Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African 

Americans: Company’s Former Use of Criminal Background Checks Discriminated Based on Race, Agency 

Found, EEOC Press Release (Jan. 11, 2012); Evan Pontz, Labor: Dealing with the “New” EEOC, Inside 

Counsel (Nov. 14, 2011) (“Smart employers... will seek opportunities to resolve EEOC charges quickly, 

efficiently, through other means (such as through private settlements or private mediations) and to try to 

encourage the EEOC to expend its limited resources elsewhere.”) 

9 Additionally, as I suggested in the introductory paragraphs, it is likely unconstitutional at least in the 

form that it is practiced today. See infra at Part V.
Criminal Background Checks and the EEOC’s Conviction Records Policy 313

intent to discriminate on the basis of race was a necessary element of the cause of action. See 

Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975)(Green I).10

In Green I, the Missouri Pacific Railroad had a policy of not hiring job applicants 

with criminal records. As a result, 5.35% of African-American and 2.23% of white job 

applicants were rejected.11 To explain its policy, Missouri Pacific advanced the following 

concerns (in the court’s words): “1) fear of cargo theft, 2) handling company funds, 3) 

bonding qualifications, 4) possible impeachment of an employee as witness, 5) possible 

liability for hiring persons with known violent tendencies, 6) employment disruption caused 

by recidivism, and 7) alleged lack of moral character of persons with convictions.” Id. at 

1298.

This was not good enough. The Green I panel chided Missouri Pacific for failing to 

“validat[e] its policy with respect to conviction records.” The EEOC had argued as amicus 

curiae and the court apparently agreed that the law requires an employer to prove with the 

precision of a social scientist that the job qualifications it uses produce better employees. 

The best I can say is that if the law requires that, then “the law is an ass—a[n] 

idiot.”12

 10 Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (1970), modified on other grounds and aff’d 472 

F.2d 631 (8th Cir. 1972), is also worth noting. In it, the court held that an employer could not, consistently with 

Title VII, decline to hire job applicants with 14 arrests for offenses other than traffic violations but no 

convictions. The court stated:

Job qualifications that have a disparate impact on some group under a prohibited 

classification are the rule, not the exception. See infra at Part IV(A). Yet only the very 

largest employers have any chance of conducting the kind of research the EEOC and the 

Eighth Circuit demanded in Green I. The rest will not have enough data—even if they have 

There is no evidence to support a claim that persons who have suffered no criminal 

convictions but have been arrested on a number of occasions can be expected, when 

employed, to perform less efficiently or less honestly than other employees. In fact, the 

evidence in the case is overwhelmingly to the contrary. Thus, information concerning a 

prospective employee’s record of arrests without convictions, is irrelevant to his suitability or 

qualification for employment. In recognition of this irrelevance, the County of Los Angeles, a 

large-scale employer, has ceased to ask for arrest information in application for employment.

The court did not specify the evidence that it was relying on. Whatever it was, it was unlikely to apply to an 

employee with fourteen arrests. I am very doubtful that Judge Hill would have hired a law clerk, a housekeeper, 

a baby sitter or any other job applicant with a record of fourteen arrests himself without overwhelming evidence 

that the particular job applicant’s character had changed radically.

See also Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406 U.S. 950 (1972) (involving 

allegations of discrimination against state agency governed by the Fourteenth Amendment and Section 1981 

rather than Title VII).

11 Missouri Pacific also had a policy against hiring certain applicants with arrest records, but the 

numbers involved in that policy were much smaller. Green v. Missouri Pacific Railroad, 381 F. Supp. 992 

(E.D. Mo.1974).

12 Charles Dickens, OLIVER TWIST ch. 51 (1838) (quoting Mr. Bumble). 
314 Commissioners’ Statements

the surplus time and energy necessary to conduct the research. Can a plumbing company 

prove that plumbers with at least three years’ experience do better than those with less? 

Probably not. Can a small bank prove that hiring tellers who did well in school in basic 

mathematics will result in fewer errors? Can a department store prove that job applicants 

with positive letters of recommendation from previous retail employers will make better sales 

clerks? I doubt it—not without a significant investment of time and resources. And yet they 

are probably right. Certainly, the EEOC cannot prove the contrary (and it conveniently did 

not require itself to do so).

The fact is that very little of what we know or think we know is “known” to the 

degree of certainty the EEOC and Green I demanded. If human beings only acted on what 

we know with scientific certainty, the result would be paralysis. At some point we all rely on 

experience, common sense and the spirit of experimentation. Employers making hiring and 

promotion decisions are no different. If the validation requirement were taken seriously (as 

opposed to applied only when it suits the EEOC to apply it), it would invalidate almost all 

job qualifications.13

 13 Nevertheless, this same argument was successfully made before the Supreme Court in Albemarle 

Paper Co. v. Moody, 422 U.S. 405 (1975)—a case in which the employer had actually made the effort—by 

hiring an industrial psychologist to validate its job requirements. But the Court rejected these efforts because, 

among other things, the data the employer was able to generate was too scanty to be statistically significant. It 

is likely that the justices did not realize that their own job qualifications for hiring clerks—a law degree, law 

review experience, and graduation from a prestigious law school—would almost certainly fail the test they had 

set out in Albemarle Paper Co. 

A few years later, the EEOC promulgated the 1978 Uniform Guidelines on Employee Selection 

Procedures, under which a selection procedure that has a disparate impact on the members of any race, sex, or 

ethnic group is considered a violation of Title VII unless the selection procedure has been validated. 29 C.F.R. 

§ 1607.3(A). Section 1607.5 elaborated on what validation entails.

§ 1607.5

General standards for validity studies.

A. Acceptable types of validity studies. For the purposes of satisfying these guidelines, users may rely 

upon criterion-related validity studies, content validity studies or construct validity studies, in 

accordance with the standards set forth in the technical standards of these guidelines, section 14 below. 

New strategies for showing the validity of selection procedures will be evaluated as they become 

accepted by the psychological profession.

B. Criterion-related, content, and construct validity. Evidence of the validity of a test or other selection 

procedure by a criterion-related validity study should consist of empirical data demonstrating that the 

selection procedure is predictive of or significantly correlated with important elements of job 

performance. See section 14B below. Evidence of the validity of a test or other selection procedure by 

a content validity study should consist of data showing that the content of the selection procedure is 

representative of important aspects of performance on the job for which the candidates are to be 

evaluated. See 14C below. Evidence of the validity of a test or other selection procedure through a 

construct validity study should consist of data showing that the procedure measures the degree to 

which candidates have identifiable characteristics which have been determined to be important in 

successful performance in the job for which the candidates are to be evaluated. See section 14D below.

C. Guidelines are consistent with professional standards. The provisions of these guidelines relating to 

validation of selection procedures are intended to be consistent with generally accepted professional 

standards for evaluating standardized tests and other selection procedures, such as those described in 

the Standards for Educational and Psychological Tests prepared by a joint committee of the American 
Criminal Background Checks and the EEOC’s Conviction Records Policy 315

 

Psychological Association, the American Educational Research Association, and the National Council 

on Measurement in Education (American Psychological Association, Washington, DC, 1974) 

(hereinafter “A.P.A. Standards”) and standard textbooks and journals in the field of personnel 

selection.

D. Need for documentation of validity. For any selection procedure which is part of a selection process 

which has an adverse impact and which selection procedure has an adverse impact, each user should 

maintain and have available such documentation as is described in section 15 below.

E. Accuracy and standardization. Validity studies should be carried out under conditions which assure 

insofar as possible the adequacy and accuracy of the research and the report. Selection procedures 

should be administered and scored under standardized conditions.

F. Caution against selection on basis of knowledges, skills, or ability learned in brief orientation 

period. In general, users should avoid making employment decisions on the basis of measures of 

knowledges, skills, or abilities which are normally learned in a brief orientation period, and which have 

an adverse impact.

G. Method of use of selection procedures. The evidence of both the validity and utility of a selection 

procedure should support the method the user chooses for operational use of the procedure, if that 

method of use has a greater adverse impact than another method of use. Evidence which may be 

sufficient to support the use of a selection procedure on a pass/fail (screening) basis may be 

insufficient to support the use of the same procedure on a ranking basis under these guidelines. Thus, if 

a user decides to use a selection procedure on a ranking basis, and that method of use has a greater 

adverse impact than use on an appropriate pass/fail basis (see section 5H below), the user should have 

sufficient evidence of validity and utility to support the use on a ranking basis. See sections 3B, 14B 

(5) and (6), and 14C (8) and (9).

H. Cutoff scores. Where cutoff scores are used, they should normally be set so as to be reasonable and 

consistent with normal expectations of acceptable proficiency within the work force. Where applicants 

are ranked on the basis of properly validated selection procedures and those applicants scoring below a 

higher cutoff score than appropriate in light of such expectations have little or no chance of being 

selected for employment, the higher cutoff score may be appropriate, but the degree of adverse impact 

should be considered.

I. Use of selection procedures for higher level jobs. If job progression structures are so established that 

employees will probably, within a reasonable period of time and in a majority of cases, progress to a 

higher level, it may be considered that the applicants are being evaluated for a job or jobs at the higher 

level. However, where job progression is not so nearly automatic, or the time span is such that higher 

level jobs or employees' potential may be expected to change in significant ways, it should be 

considered that applicants are being evaluated for a job at or near the entry level. A “reasonable period 

of time” will vary for different jobs and employment situations but will seldom be more than 5 years. 

Use of selection procedures to evaluate applicants for a higher level job would not be appropriate:

(1) If the majority of those remaining employed do not progress to the higher level job;

(2) If there is a reason to doubt that the higher level job will continue to require essentially similar 

skills during the progression period; or

(3) If the selection procedures measure knowledges, skills, or abilities required for advancement, 

which would be expected to develop principally from the training or experience on the job.

J. Interim use of selection procedures. Users may continue the use of a selection procedure which is 

not at the moment fully supported by the required evidence of validity, provided: (1) The user has 

available substantial evidence of validity, and (2) the user has in progress, when technically feasible, a 

study which is designed to produce the additional evidence required by these guidelines within a 

reasonable time. If such a study is not technically feasible, see section 6B. If the study does not 

demonstrate validity, this provision of these guidelines for interim use shall not constitute a defense in 

any action, nor shall it relieve the user of any obligations arising under Federal law.

K. Review of validity studies for currency. Whenever validity has been shown in accord with these 

guidelines for the use of a particular selection procedure for a job or group of jobs, additional studies 

need not be performed until such time as the validity study is subject to review as provided in section 

3B above. There are no absolutes in the area of determining the currency of a validity study. All 
316 Commissioners’ Statements

Green I went on to state that “blacks who have been summarily denied employment

by MoPac on the basis of conviction records have been discriminated against on the basis of

race in violation of Title VII and that the district court should enjoin MoPac's practice of

using convictions as an absolute bar to employment.” Id. at 1298-99.14

On remand, the trial court issued an order enjoining Missouri Pacific from

disqualifying job applicants on account of any past criminal conviction. But it specifically

allowed Missouri Pacific to consider an applicants' prior criminal record as a factor in

making individual hiring decisions so long as defendant takes into account (1) the nature and

gravity of the offense or offenses, (2) the time that has passed since the conviction and/or

completion of sentence, and (3) the nature of the job for which the applicant has applied.

These three items have come to be known as the “Green factors.”

Neither side of the litigation was happy with this result. But it was the plaintiffs, not

the defendant, who were most dissatisfied and appealed. They requested that the court enjoin

Missouri Pacific from considering a job applicant’s criminal record at all unless and until it

could produce a valid study showing that ex-offenders do indeed perform poorly at Missouri

Pacific as employees. A different panel of the Eighth Circuit (with only Judge Heaney in

common) held that the Green I panel’s discussion of the need for a validated study was

dictum and affirmed the trial court. Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th

Over the course of the next two decades, the EEOC issued several policy statements

on the issue. The first—issued on February 4, 1987—essentially overruled an earlier EEOC

decision that had curtailed employer discretion more than the Green factors and applied the

Green factors instead.

Cir. 1977)(“Green II”).

15

circumstances concerning the study, including the validation strategy used, and changes in the relevant

labor market and the job should be considered in the determination of when a validity study is

outdated.

 A second policy statement was issued a few months later and

It was not until a decade later that the Supreme Court began to back away from Albemarle Paper and

state that such formal validation studies are not necessarily required to demonstrate business necessity. Watson

v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (plurality opinion). After the Civil Rights Act of 1991, the

status of this issue is quite uncertain.

14 Note that the court stated that “blacks who have been summarily denied employment by MoPac on

the basis of conviction records have been discriminated against on the basis of race in violation of Title VII.”

(Emphasis added). What about whites or Asians? One of the aspects of Chairman Castro’s draft Statement that

struck me is how little the arguments that he uses in favor of laws that help ex-offenders find jobs depend (or

should depend) on issues of race, color, sex, religion or national origin. If it is good policy for the federal

government to encourage employers to hire ex-offenders (and through the Work Opportunity Tax Credit

Program I believe it is), it is not clear why this should depend on the race, color, sex, religion or national origin

of the ex-offender. Trying to deal with this issue as a race question is misguided.

15 See EEOC Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. sec. 2000e et seq. (Feb. 4, 1987). An earlier decision of the EEOC had

taken the position that an employer should consider (1) the number of offenses and the circumstances of each

offense for which the individual was convicted; (2) the length of time intervening between the conviction for
Criminal Background Checks and the EEOC’s Conviction Records Policy 317

clarified that, if an employer could show that within its applicant pool its conviction policy 

did not have a disparate impact, then no violation of Title VII would have occurred.16

The 2012 Guidance moves things in the opposite direction from those two policy 

statements. While it insists that it “does not necessarily require individualized assessment in 

all circumstances ... the use of a screen that does not include individualized assessment is 

more likely to violate Title VII ... [and] the use of individualized assessments can help 

employers avoid Title VII liability....” One can be confident that employers will read this as 

requiring individualized assessments at least for members of the groups for whose benefit the 

policy is intended (African Americans and Hispanics).

 The 

latter was arguably an obvious point to a lawyer familiar with disparate impact analysis, but 

sometimes obvious points have to be made, since these policy statements must be applied by 

non-lawyers.

Although the guidance is far from clear, an individualized assessment appears to 

include application of the Green factors followed by a second, more subjective assessment. 

The latter part of the procedure ordinarily must include “notice that [the job applicant] has 

been screened out because of a criminal conviction, an opportunity to ... demonstrate that 

[the employer’s policy] should not be applied due to his particular circumstances; and ... 

whether the additional information ... warrants an exception ... show[ing] that the policy as 

applied is not job related and consistent with business necessity.” 2012 Guidance at 15.

Put differently, the 2012 Guidance requires that employers telegraph to job applicants 

that they have been screened out on account of their criminal records. It thus exponentially 

increases the odds of a lawsuit. The vague discussion of business necessity in the guidance 

means that reasonable minds will disagree as to whether the employer has sufficient reason to 

reject a job applicant on account of his criminal record. The fact that ex-offenders are 

sometimes unreasonable should not be lost sight of.17

 

the offense and the employment decision; (3) the individual’s employment history; and (4) the individual’s 

efforts at rehabilitation. See Commission Decision No. 78-35, CCH EEOC Decisions, Para. 6720 (June 8, 

1978). Employers considered the two latter factors to open up the inquiry far too broadly. Green II was 

problem enough for employers, but it was water under the bridge. Knowledge of rehabilitation efforts would 

require more interaction with the job applicant than is often justified under the circumstances and would likely 

encourage litigation. The Green factors narrowed the required inquiry relative to the EEOC’s earlier decision. 

 

 16 EEOC Policy Statement on the Use of Statistics Involving the Exclusion of Individuals with 

Criminal Records from Employment (Jul. 29, 1987). In 1990, the EEOC adopted a policy that applied 

specifically to the use of arrest records. See Policy Guidance on the Consideration of Arrest Records in 

Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. sec. 2000e et 

seq. (Sept. 7, 1990).

17 Back in 1978, a “charging party” complained to the EEOC that he had been denied a job at a public 

auditorium on account of convictions for rape, drunkenness, assault & battery, carrying a pistol with a license 

and carrying a concealed weapon as well as various and sundry arrests, including one for burglary. He 

apparently did not think his record should pose a problem. The EEOC disagreed. But the 2012 Guidance will 

ensure that litigation of this type will become more common, because it pushes employers hard to question their 

job applicants about the particular circumstances of their convictions, their efforts at rehabilitation, etc. 
318 Commissioners’ Statements

Once an ex-offender brings a case to the EEOC’s attention (or the employer’s 

exercise of discretion is brought to the EEOC’s attention by other means), it will be the 

EEOC’s judgment concerning what constitutes “business necessity,” rather than the 

employer’s, that counts. The only way to avoid this is for the employer to bend over 

backwards to hire ex-offenders.

In their draft Statement, Commissioners Kladney and Achtenberg recount a 

disagreement among the members of the Commission. The staff member who composed the 

initial draft of the report had written: “Taken as a whole it [the 2012 Guidance] emphasizes 

the judgment of the EEOC over that of employers in the selection or retention of employees 

with criminal histories.” Commissioner Kladney wanted that language removed from the 

report. He also objected to the staff member’s suggested alternative wording, which was to 

place the word “subjective” before the word “judgment.” In an effort to accommodate 

Commissioner Kladney’s concerns, the Commission adopted the following, which 

Commissioner Kladney also objected to:

“Although the 2012 Guidance acknowledges as a legitimate selection 

concern, the physical or other security risks to customers or other 

employees inherent in hiring any employee, it leaves employers exposed to 

the discretionary judgment of the EEOC as to individual hiring decisions.”

But the staff member had it exactly right. Both the original wording and the various 

alternatives we considered were correct. Commissioner Kladney can argue about whether 

this is a good thing or a bad thing, but it is difficult to deny the accuracy of the statement in 

its various forms. The whole point of the EEOC’s guidance was to inform employers that 

the EEOC’s (and ultimately a court’s) judgment on the issue of the risk of hiring a particular 

ex-offender or class of ex-offenders for a particular job or class of jobs would trump the 

employer’s. I have no confidence that the EEOC will be a better judge of these matters than 

employers. Instead it will almost certainly do a worse job.18

Still, the 2012 Guidance is not the root of the problem. The root of the problem is 

disparate impact liability itself. I shall therefore turn to the curious history of that doctrine, 

its perverse consequences (particularly in the area of criminal background checks) and the 

troubling constitutional issues it raises. 

III. The Invention of Disparate Impact Liability by the EEOC Was Contrary to 

the Intent of Congress in 1964, But Has Unfortunately Become Embedded in 

the Law through the 1991 Act, Thus Paving the Way for its Ill-Considered 

2012 Guidance.

 18 If the EEOC interprets “business necessity” to require anything more than a good faith business 

reason for the employer’s decision, the EEOC’s intervention in this area is guaranteed to cause very serious 

problems. See supra at note 6. But even a very limited intervention will cause problems. Lest we forget: The 

EEOC is unlikely to understand an individual employer’s business needs as well as the employer. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 319

The passage of Title VII of the Civil Rights Act of 1964 was historic. But it was not 

intended to assert federal control over every aspect of the workplace. Its carefully limited 

purpose was to prohibit employment discrimination based on race, color, religion, sex and 

national origin. As Representative William M. McCulloch and his co-authors put it:

“[M]anagement prerogatives and union freedoms are to be left 

undisturbed to the greatest extent possible. Internal affairs of 

employers and labor organizations must not be interfered with 

except to the limited extent that correction is required in 

discrimination practices.”19

At the time, this was likely seen as an obvious, but important, point. Free enterprise 

has always been the engine that drives the nation’s prosperity. For that and other reasons, the 

best way for the federal government to promote the general welfare, including the welfare of 

women and minorities, has usually been to allow individuals the freedom to run their own 

business affairs when acting in a peaceable and honest manner. When exceptions become 

necessary (as they were in 1964), those exceptions were understood by most of their 

Congressional supporters as precisely that—exceptions. They were not intended to swallow 

the rule.20 

With the leadership of Rep. McCulloch and others, H.R. 7152 passed the House of 

Representatives on February 10, 1964 by a vote of 290 to 110.21

“There is no requirement in Title VII that employers abandon bona fide 

qualification tests where, because of differences in background and 

education, members of some groups are able to perform better on these tests 

 Passing the Senate would 

prove more difficult, since Senate rules at the time requires 67 votes to cut off the inevitable 

Southern filibuster. Every vote would count. Senate leaders carefully assured their 

colleagues that Title VII would not interfere with employer discretion to set job 

qualifications–so long as race, color, religion, sex and national origin were not among them. 

Senators Clifford Case (R-N.J.) and Joseph Clark (D-Pa.), co-managers of the bill on the 

Senate floor, emphasized this in an interpretative memorandum: 

 19 Statement of William M. McCulloch et al., H.R. Rep. No. 914, 88 Cong., 2d Sess. (1964). 

McCulloch was the ranking member of the House Judiciary Committee and was considered by many on both 

sides of the aisle to have been indispensable in drafting and securing the passage of the Act. See William N. 

Eskridge, Jr., Philip Frickey and Elizabeth Garrett, CASES AND MATERIALS ON LEGISLATION: STATUTES 

AND THE CREATION OF PUBLIC POLICY 3-10 (3d ed. 2001)(discussing McCulloch’s critical role in passing 

the Civil Rights Act of 1964).

20 There is a reason that countless employers proclaim, “Our employees are our most valuable asset.” 

Using care in selecting employees is what gives many businesses their competitive edge. Some use tried-andtrue methods to make their choices. Others use innovative approaches. Straight-jacketing employer discretion 

in this crucial area only serves to damage the competitiveness of American enterprise. 

21 See Hugh Davis Graham, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF 

NATIONAL POLICY 129-138 (1990). Support for the bill was bipartisan with 152 Democrats and 138 

Republicans voting in favor and 96 Democrats and 34 Republicans voting against. Overwhelmingly the 

negative votes came from members from states of the former Confederacy. Id.
320 Commissioners’ Statements

than members of other groups. An employer may set his qualifications as 

high as he likes, he may test to determine which applicants have these 

qualifications, and he may hire, assign, and promote on the basis of test 

performance.” 

Case & Clark Memorandum, 110 Cong. Rec. 7213 (emphasis added). 

Note that Case and Clark used the term “bona fide qualification tests,” meaning 

qualification tests adopted in good faith, and not “necessary” or “scientifically valid” 

qualification tests. To Case and Clark, the issue was whether the employer chose a particular 

job qualification because he believed that it would bring him better employees or because he 

believed it would help him exclude applicants based on their race, color, religion, sex or 

national origin. Neither the EEOC nor the courts were authorized to second-guess an 

employer acting in good faith.22 

Indeed, Clark and Case celebrated this aspect of Title VII, pointing out that it 

“expressly protects the employer’s right to insist that any prospective applicant, Negro or 

white, must meet the applicable job qualifications.” “Indeed, the very purpose of Title VII is 

to promote hiring on the basis of job qualifications, rather than on the basis of race or color,” 

they wrote. Case & Clark Memorandum, 110 Cong. Rec. 7247.

Congress’s intention to outlaw only discriminatory treatment and not disparate impact 

is made clear from Title VII’s central prohibitions:

Section 703. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail of refuse to hire or to discharge any individual, or otherwise to discriminate 

against any individual with respect to his compensation, terms, conditions, or 

privileges of employment, because of such individual’s race, color, religion, sex, 

or national origin; or 

(2) to limit, segregate, or classify his employees or applicants for employment in any 

way which would deprive or tend to deprive any individual of employment 

opportunities or otherwise adversely affect his status as an employee, because of 

such individual’s race, color, religion, sex, or national origin.

42 U.S.C. sec. 2000e-2 (emphasis added).

To “discriminate” against a job applicant “because of” his “race, color, religion, sex 

or national origin” always requires some level of intentionality.23

 22 Clark and Case’s remarks were likely inspired at least in part by the controversy over Myart v. 

Motorola, Inc., No. 63C-127 (Ill. F.E.P.C. 1964), reprinted in 110 Cong. Rec. 5662 (1964). See infra at note 

27. 

 As Richard K. Berg, who 

23 I believe that the term “discriminate” does not always require conscious intentionality. If an 

employer rejects a Hispanic job applicant, when he would have hired an applicant who is identical in every way 
Criminal Background Checks and the EEOC’s Conviction Records Policy 321

as an attorney in the Office of Legal Counsel at the Department of Justice helped draft the

Kennedy Administration’s original proposal and who advised Senator Humphrey during the

debates, put it: “Discrimination is by its nature intentional. It involves both an action and a

reason for action. To discriminate ‘unintentionally’ on grounds of race, color, religion, sex

or national origin appears a contradiction in terms.” See Richard K. Berg, Equal

Employment Opportunity Under the Civil Rights Act of 1964, 31 BROOKLYN L. REV. 62, 71

(1964).24

But just in case Section 703 were to be misinterpreted, the bill was amended in the

Senate at the insistence of Republican Leader Everett Dirksen—without whose support the

bill likely never would have gotten past the Southern filibuster. For example, at Dirksen’s

behest, the word “intentionally” was added to Section 706(g), which deals with judicial

power to enforce the prohibitions of Section 703. As modified, Section 706(g)(1) read:

(1) If the court finds that the respondent has intentionally engaged in or is

intentionally engaging in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent from engaging in such unlawful

employment practice, and order such affirmative action as may be appropriate,

which may include, but is not limited to, reinstatement or hiring of employees,

with or without back pay ..., or any other equitable relief as the court deems

appropriate. ...

42 U.S.C. sec. 2000e-5(g)(1) (emphasis added).

In explaining why the term “intentionally” was added here, Senator Humphrey said,

“Section 706(g) is amended to require a showing of intentional violation of the title in order

to obtain relief.... The expressed requirement of intent is designed to make it wholly clear

that inadvertent or accidental discrimination will not violate the title or result in entry of

court orders.” 110 Cong. Rec. 12,723-28 (1964).25

except that he is not Hispanic, the employer is discriminating against the Hispanic applicant because of his race

or national origin. To discriminate against an individual because of his race or national origin is to treat him

differently from how one would have treated an otherwise identical person of a different race or national origin.

The employer need not be consciously aware of the double standard he is applying. That is, however, a very

great distance from disparate impact liability, which does not require that the employer be motivated by race or

national origin at all, consciously, subconsciously or unconsciously.

 See also Hugh Davis Graham, supra note

24 Berg later became Deputy General Counsel of the EEOC, where he apparently clashed with Alfred

W. Blumrosen. See infra at 325-326.

25 Dirksen’s amendment and Humphrey’s explanation are not in perfect harmony, since the amendment

applied only to judicial remedies, while Humphrey’s explanation applies generally. Dirksen may have intended

to foreclose courts from intervening even in the case of unconscious disparate treatment and to leave such cases

entirely to the mediation efforts of the EEOC. An employer who engaged in unconscious discrimination would

essentially be allowed “one free bite.” If the employer continued its practices after EEOC mediation efforts, it

would be difficult for the employer to maintain that its actions were unconscious. None of this comes close to

allowing disparate impact liability. It is simply a debate over various sorts of disparate treatment liability.
322 Commissioners’ Statements

11 at 387 (1990); Daniel Rodriguez & Barry R. Weingast, The Positive Political Theory of

Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation,

151 U. PENN. L. REV. 1417 (2003) (both arguing that the 88th Congress would have been

astonished at the application of disparate impact liability).26

Dirksen also insisted that the EEOC be reconfigured to ensure that it would not

exercise what he and his allies were convinced could grow to be excessive power over the

employment relationship.27

26 Indeed, while Title VII was under consideration, an Illinois hearing examiner, interpreting the more

loosely worded Illinois Fair Employment Practices Act, concluded that an employer could not administer a

general intelligence test to job applicants, despite a lack of intent to discriminate on the basis of race, because

African Americans had not received the kind of education that would allow them to do well on the test. Myart

v. Motorola, Inc., No. 63C-127 (Ill. F.E.P.C. 1964), re-printed in 110 Cong. Rec. 5662 (1964). Title VII

supporters were frantic to assure their colleagues that their proposed law would not permit such a result. Just in

case, an amendment was proposed by Senator John Tower and adopted stating that notwithstanding any other

provision, employers are free “to give and to act upon the results of any professionally developed ability test

provided that such test is not designed, intended or used to discriminate because of race ....” In the view of most

observers, including newspaper editorial pages at the time, the hearing examiner had badly overreached. See

Hiring Tests Wait for the Score: Case Involving Motorola’s Employment Test Raises Issue of Whether

Employers Can Use Screening Devices That Might Discriminate Against “Deprived” Persons, BUS. WEEK 45

(Feb. 13, 1965) (reporting that Title VII would not permit such a result). No one in Congress defended the

Myart decision. Not surprisingly, it was eventually overturned. Motorola, Inc. v. Illinois Fair Employment

Commission, 34 Ill.2d 266, 215 N.E.2d 286 (1966). But see Griggs v. Duke Power Co., 401 U.S. 424 (1971)

(interpreting the Tower Amendment to impose on employers a duty to use only those tests that can be proven in

court to be job-related and using it as the primary textual support for adopting rather than rejecting disparate

impact liability). See also George Rutherglen & John Donohue III, EMPLOYMENT DISCRIMINATION: LAW

AND THEORY 158 (3d ed. 2012) (critically questioning the Griggs interpretation of the Tower Amendment).

 Dirksen saw to it that it would have neither the authority to

27 This process of ensuring that the EEOC would not become an all-powerful regulator of employment

practices had already begun in the House of Representatives. Although the Kennedy Administration’s original

proposal did not contain a general ban on employment discrimination at all, a new proposal, which emerged in

subcommittee, did so. This early version of what eventually became Title VII proposed an EEOC modeled on

the National Labor Relations Board (NLRB), complete with quasi-judicial cease-and-desist enforcement

authority. Such power, however, was unacceptable to most of the Republicans and some of the Democrats

whose votes would be crucial to secure the bill’s passage. Over the years, these members had become

increasingly concerned by what they viewed as pro-Labor bias and regulatory abuse of the NLRB (and similar

biases and abuses by similarly empowered administrative agencies). In their view, administrative procedures

made it difficult for courts to intervene to prevent further abuse. They argued that federal courts “so rarely

overturned the decisions of such administrative tribunals that the normal burden of proof was reversed, and the

accused on appeal found that ‘he must bear the burden of proving his freedom from guilt.’” See Hugh Davis

Graham, THE CIVIL RIGHTS ERA: ORIGINS AND DEVELOPMENT OF NATIONAL POLICY 130-31 (1990)

(quoting Statement of Griffin and Frelinghuysen, House Rep. No. 570 at 15).

The House bill had to be stripped of cease-and-desist authority on the part of the EEOC and it was.

Instead, the bill was amended to rely on what House Republicans referred to as the “prosecutorial model” under

which the EEOC would be authorized to bring actions in federal court, but those courts would ultimately control

the interpretation of Title VII. This was in keeping with the standard model under which the Department of

Labor enforced the recently passed Equal Pay Act, the wage-and-hour provisions of the Fair Labor Standards

Act, and the unfair labor practices prohibited by the Landrum-Griffin Act. See Hugh Davis Graham at 130.
Criminal Background Checks and the EEOC’s Conviction Records Policy 323

engage in substantive rulemaking nor the authority to litigate. Fearful of the tendency of

administrative agencies to be captured by political ideologues, Dirksen and his Senate allies

wanted an EEOC whose charge was simply to investigate and mediate complaints.

Under Dirksen’s model, when a complainant was dissatisfied with the EEOC’s efforts

at mediation, he or she could bring a Title VII action in federal court against the employer.28

The only governmental agency authorized to institute litigation against an employer on

behalf of the United States was the Department of Justice and then only if it found a “pattern

or practice” of violations.

Courts would thus be the primary interpreter of Title VII and not the EEOC. Dirksen

adamantly opposed substantive rulemaking authority on the part of the new agency, because

he saw it as an opportunity for the agency to extend Title VII’s reach through the

promulgation of prophylactic rules that go beyond the scope of Title VII’s actual

prohibitions. If the EEOC’s role could be confined to investigation and mediation, Dirksen

believed the risk of agency overreach would be minimized.29

No one publicly objected to Dirksen’s insertion of the word “intentional” into Section

706(g)(1). It was uncontroversial at the time. But some advocates were infuriated by

Dirksen’s reconfiguration of the EEOC. One scholar famously called it “a poor enfeebled

thing.” Michael I. Sovern, LEGAL RESTRAINTS ON RACIAL DISCRIMINATION IN

EMPLOYMENT 102, 205-06 (1966). It was commonplace to refer to the EEOC as a

“toothless tiger” until it received the power to pursue lawsuits against employers in 1972.

Indeed, the EEOC’s own web site acknowledges this:

“Because of its lack of enforcement powers, most civil rights groups viewed

the Commission as a “toothless tiger.” Nevertheless, EEOC made significant

contributions to equal employment opportunity between 1965 and 1971 by

using the powers it had to help define discrimination in the workplace.”30

But the plain truth was that without these and other modifications to the bill required by

The prosecutorial model, however, was not satisfactory to Dirksen and a significant number of Senate

Republicans whose vote were crucial to the bill’s passage. The Senate version of the bill, which eventually

became law, gave the EEOC the authority to mediate disputes arising out of Title VII, but nothing more.

28 Another of Dirksen’s amendments eliminated the ability of advocacy organizations like the NAACP

to sue of behalf of victims. Dirksen wanted Title VII litigation to work the way most civil litigation does—with

actual victims suing actual wrongdoers. See Daniel Rodriguez & Barry R. Weingast, The Positive Political

Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation, 151 U.

PENN. L. REV. 1417, 1490 (2003).

29 Compare Alexander v. Sandoval, 532 U.S. 275 (2001)(noting that Title VI does confer upon the

Department of Justice the authority to promulgate regulations and assuming without deciding that those

regulations may go somewhat beyond Title VI’s ban on actual discrimination).

30 See EEOC 35th Anniversary: 1965 - 1971: A “Toothless Tiger” Helps Shape the Law and Educate

the Public, available at http://www.eeoc.gov/eeoc/history/35th/1965-71/index.html
324 Commissioners’ Statements

Dirksen, the Civil Rights Act of 1964 would not have passed.31 Like most major legislation,

it was the product of compromise.

 The story, however, did not end there. In the next phase of Title VII’s history,

“creative” EEOC officials, concerned about what they considered to be an otherwise

“powerless” agency implementing a “weak statute,” supplanted the original design of Title

VII with a disparate impact framework that they believed would be more effective in “coping

with the major problems of [their] time.” Alfred W. Blumrosen, BLACK EMPLOYMENT

AND THE LAW 53 (1971)(“BLACK EMPLOYMENT”).

Early on, EEOC officials seized upon the idea of issuing “guidelines” (more

commonly called “guidances” today) as an alternative to the substantive rulemaking power

that Dirksen and his allies had denied them. BLACK EMPLOYMENT at 52. Given the

eagerness of most employers to stay on the right side of the law, these guidances have proven

to be as effective as regulations at influencing employer practices.

31Among the other amendments pressed by Senator Dirksen and acquiesced in by Congress were (1) a

restriction requiring complaints to attempt to exhaust their remedies before state fair employment practices

commissions before they file a complaint with the EEOC; (2) an exemption for employers whose employees

work less than twenty weeks per year (largely designed for agricultural employers); (3) the deletion of a

provision that would have allowed outside organizations like the NAACP to sue on behalf of an employee or

applicant for employment; (4) the deletion of language at the beginning of Title VII suggesting broad purpose

on the part of Congress. As to the fourth item on this list, see infra at 327-328. Most of Dirksen’s changes can

fairly be described as weakening the bill. But one amendment—the expansion of the definition of “employment

agency” to include union hiring halls —significantly strengthened the bill. See Daniel Rodriguez & Barry R.

Weingast, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act

and Its Interpretation, 151 U. PENN. L. REV. 1417, 1490 (2003).

One of Dirksen’s final additions to the bill read:

“(j) Preferential treatment not to be granted on account of existing number or percentage

balance

Nothing contained in this subchapter shall be interpreted to require any employer ... subject

to this subchapter to grant preferential treatment to any individual or to any group because of

race, color, religion, sex or national origin of such individual or group on account of an

imbalance which may exist with respect to the total number or percentage of persons of any

race, color, religion, sex, or national origin employed by any employer ... in comparison with

the total number or percentage of persons of such race, color, religion, sex, or national origin

in any community ... or in the available work force ....”

This amendment was important in United Steelworkers v. Weber, 443 U.S. 193 (1979), when it was

interpreted not to cover cases in which an employer was engaging in affirmative action on a voluntary basis. A

slim five-member majority held that while Title VII did not require preferential treatment for under-represented

minorities, it did, at least under certain circumstances, permit it. At the time, the employer, Kaiser Aluminum

& Chemical Corp., was coming under pressure from the EEOC to increase the number of minority members in

its craft-training positions. The Court nevertheless treated Kaiser’s preferential treatment of under-represented

minority member as voluntary.
Criminal Background Checks and the EEOC’s Conviction Records Policy 325

Indeed, in some ways, in some ways it worked to the EEOC’s advantage not to have 

substantive rulemaking authority. Unlike substantive rules, guidances are not subject to the 

Administrative Procedure Act procedures like notice and comment and thus tend to receive 

less public scrutiny or government oversight.32 The one-sided, truncated procedure leading 

up to the adoption of the 2012 Guidance is just one example.33 

It did not take long before the EEOC began to promote disparate impact policy 

despite the contradiction between that policy and Title VII as it was actually passed by 

Congress. Alfred Blumrosen, the EEOC’s first “Chief of Conciliations” and one of the 

architects of its disparate impact policy, was unabashed in describing the extent to which the 

EEOC was (and in his view should be) aggressive in its interpretation of Title VII: 

Creative administration converted a powerless agency operating under an 

apparently weak statute into a major force for the elimination of employment 

discrimination. ... [Legal education] rarely deals with the affirmative aspects 

of administration. Rather, the law schools provide elaborate intellectual 

equipment to restrict the efforts of administrators. Constitutional law and 

administrative law are still largely concerned with what government may not 

do, rather than with how it should decide what it may do. Students impatient 

with the negativism of present legal education would be better equipped as 

lawyers if they would focus sharply on the question of “how we can best 

fulfill the purposes which brought our agency into being” rather than on the 

question of “whether the courts will sustain this course of action.”

BLACK EMPLOYMENT at 53 (emphasis in original).

Historian Hugh Davis Graham wrote in THE CIVIL RIGHTS ERA: ORIGINS AND 

DEVELOPMENT OF NATIONAL POLICY:

The EEOC legal staff was aware from the beginning that a normal, traditional, and 

literal interpretation of Title VII could blunt their efforts [based on disparate impact 

theory] against employers who used either professionally developed tests or bona fide 

 32 The fact that Title VII and arguably other laws make EEOC investigations and mediations 

confidential adds to the degree to which EEOC policymaking tends to escape both public scrutiny and 

government oversight. See 42 U.S.C. sec. 2000e-5(b). Moreover, the EEOC’s practices in this regard 

sometimes go beyond its statutory mandate. For example, the EEOC has refused to share information about its 

investigations, mediations and settlements with the Civil Rights Commission despite the fact that the 

Commission’s authorizing statute specifically requires agencies like the EEOC to cooperate with the 

Commission in its oversight role. See Letter of Peggy R. Mastroianni, EEOC Associate Legal Counsel, to 

David Blackwood, Commission General Counsel (February 6, 2009). This is not in keeping with Title VII’s 

original design. As Senator Hubert Humphrey explained, “It should be noted that this is a ban on publicizing 

and not on such disclosure as is necessary to the carrying out of the [EEOC’s] duties under the statute. ... The 

amendment is not intended to hamper ... proper cooperation with other State and Federal agencies, but rather is 

aimed at making available to the general public of unproven charges.” 110 Cong. Rec. 12297 (June 4, 1964). 

33 The statement of Commissioner Peter Kirsanow details the ways in which the EEOC failed 

to hear from employers.
326 Commissioners’ Statements

seniority systems. The EEOC’s own official history of these early years records with 

unusual candor the commission’s fundamental disagreement with its founding 

charter, especially Title VII’s literal requirement that the discrimination be 

intentional. “Under the traditional meaning,” which was the “common definition of 

Title VII,” the EEOC’s first Administrative History observes, an act of discrimination 

“must be one of intent in the state of mind of the actor.” ... But by the end of the 

Johnson administration the EEOC, by its own self-description, was disregarding Title 

VII’s intent requirement.”

Hugh Davis Graham at 248.

The Administrative History cited by Graham stated that “‘unlike state FEP agencies 

which continue to rely on intent,” the EEOC “has begun to rely on the constructive proof of 

discrimination.’” Hugh Davis Graham at 248-49. 

Writing for the NAACP’s THE CRISIS in 1968, EEOC Commissioner Samuel 

Jackson reiterated this policy:

“[The] EEOC has taken its interpretation of Title VII a step further than other 

agencies have taken their statutes. It has reasoned that in addition to 

discrimination in employment, it is also an unlawful practice to fail or refuse 

to hire, to discharge or to compensate unevenly ... on criteria which prove to 

have a demonstrable racial effect without a clear and convincing business 

motive.”

Note Jackson’s admission that the EEOC’s new approach is “in addition to 

discrimination in employment.” Yet discrimination is what Title VII bans, not the use of job 

qualifications that “prove to have a demonstrable racial effect.” 

Jackson attempts to justify the EEOC’s departure from Title VII’s intent requirement 

by stating that “Congress, with its elaborate exploration of the economic plight of the 

minority worker, sought to establish a comprehensive instrument with which to adjust the 

needless employment hardships resulting from the arbitrary operation of personnel practices, 

as well as purposeful discrimination.” Samuel C. Jackson, EEOC vs. Discrimination, Inc, 

THE CRISIS 16-17 (January 1968). But the statute is what it is (or it was what it was). It is 

no more “a comprehensive instrument with which to adjust ... needless employment 

hardships” than the Patriot Act is a comprehensive instrument with which to promote 

national security or the No Child Left Behind Act is a comprehensive instrument by which 

the federal government is given authority to “make schools better.” Words matter.34

 34 “Only the most extraordinary showing of contrary intentions would justify a limitation on the ‘plain 

meaning’ of the statutory language,” the Supreme Court has stated. Garcia v United States, 469 U.S. 70, 75 

(1984). Congress’s general objective in passing Title VII may have been primarily to remove barriers to the 

employment of African Americans or it may have been to impress Jodie Foster. But the means it chose to 

accomplish that objective was to prohibit discrimination on the basis of race, color, sex, religion or national 

origin, and that is what counts.

 The 
Criminal Background Checks and the EEOC’s Conviction Records Policy 327

88th Congress banned discrimination on the basis or race, color, sex, religion, and national 

origin in employment. Period. 

The Supreme Court nevertheless followed the EEOC’s lead in Griggs v. Duke Power 

Co., 401 U.S. 424 (1971). Although the Court did not render a detailed analysis, it suggests 

two reasons for its decision. 

The first was simple deference to the EEOC and its Guidelines on Employment 

Testing Procedures (August 24, 1966) as “expressing the will of Congress.” Id. at 435_& n. 

9. But there are several problems with deference in this context. The most obvious is that 

the EEOC’s interpretation clearly conflicts with the text of Title VII, which explicitly 

prohibits Courts from ordering a remedy in cases that do not involve “intentional” violations. 

(Remarkably, however, the Court does not even mention Section 706(g)(1)’s requirement of 

intention.) Next is that no argument was made as to why an agency that Congress had made 

every effort to render toothless should be presumed to express the will of Congress. 

Congress’s clear intent in 1964 was to confine the EEOC to a role of investigation and 

mediation. Since at the time the EEOC was not the agency charged with enforcing Title VII 

(the only authority to litigate Title VII actions belonged to the Department of Justice), it is 

difficult to see why deference was appropriate.35

Second, the Court adopted reasoning like Jackson’s in stating that the “objective of 

Congress” in enacting Title VII “was to achieve equality of employment opportunities and

remove barriers that have operated in the past to favor an identifiable group of white 

employees over other employees.” Id. at 429-30 (emphasis added). It held therefore that 

under Title VII “practices, procedures, or tests neutral on their face, and even neutral in terms 

of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior 

discriminatory employment practices.” Id. (emphasis added). “The touchstone is business 

necessity,” it stated. “If an employment practice which operates to exclude Negroes cannot 

be shown to be related to job performance, the practice is prohibited.” Id. at 431.36

The Court’s reliance on Congress’s larger intent was curious in view of the pains 

members of the Senate had taken to avoid arguments based on its supposed larger intent. 

The original bill approved by the House of Representatives contained the following vague, 

prefatory language: 

 35 The Court referred to the EEOC as “having enforcement responsibility” and as “the enforcing 

agency” for Title VII. Id. at 434 (emphasis added). But this was going too far. After the Dirksen amendments, 

the EEOC was simply a mediating agency. It had no authority to adjudicate claims or to issue cease and desist 

orders; it had no litigation authority. Mediators are not enforcers. 

The Guidelines on Employment Testing Procedures would not be entitled to Chevron-deference today, 

since they do not have the force of law. See United States v. Mead Corp., 533 U.S. 218 (2001). 

36 Griggs may well have involved intentional discrimination. But if so, it was incumbent upon the 

plaintiffs to prove their case on that theory.
328 Commissioners’ Statements

The Congress hereby declares that the opportunity for employment without 

discrimination of the types described in sections 704 and 705 is a right of all 

persons within the jurisdiction of the United States, and it is the national 

policy to protect the right of the individual to be free from such 

discrimination. 

Dirksen conditioned his support and the support of his allies on the deletion of this 

language. Note that it is nevertheless inconsistent with the Court’s notion that the statute was 

intended to generally remove barriers to employment for African Americans and other underrepresented minorities. Instead it expresses in flowery language a broad intention to protect

all persons from discrimination based on race, color, sex, religion or national origin. 

But even that much in the way of broad declarations was too much for Dirksen and 

his allies. It seems likely that they foresaw the possibility that if future courts could attribute 

broad declarations to Congress in passing Title VII, those courts might be tempted to reason 

backwards that Congress must have intended the statute to be interpreted more broadly than 

the actual operative language. Dirksen wanted the operative language of the statute to speak 

for itself: When Congress passed a law prohibiting employers from discriminating on the 

basis of race, color, religion, sex or national origin, it was because they wanted to prohibit 

employers from discriminating on the basis of race, color, religion, sex, or national origin—

nothing more and nothing less.

After Griggs, Title VII was interpreted to demand two things of employers: (1) They 

must provide equality of opportunity to all persons regardless of race, color, sex, religion or 

national origin; and (2) In deciding upon job qualifications, they must provide equality of 

group results (or at least women and minorities must do as well as men and whites) unless 

they can prove they were driven by business necessity to do otherwise. These two 

requirements are at war with each other. Equality of treatment and equality of results are not 

the same thing.

In the ensuing years, the sweeping nature of the disparate impact liability became 

more evident. In Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)(plurality 

opinion) and Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), the Court began to 

limit and clarify disparate impact liability. Only then, in 1991, did Congress pass legislation 

recognizing in any way the disparate impact theory. Civil Rights Act of 1991, Pub. L. No. 

102-166, sec. 2(2), 3(2) 3(3), 105 Stat. 1071, 1074-75 (1991). 

IV. Disparate Impact Liability, as Represented by the EEOC’s 2012 Guidance, 

Leads to Unjustified Federal Control Over Ordinary Decisions by 

Employers, Provides Opportunities for Political Favoritism, Is Logically 

Incoherent, Creates Perverse Incentives on the Part of Employers and May 

Well Work to the Disadvantage of the Very Persons It Was Intended to 

Benefit. 
Criminal Background Checks and the EEOC’s Conviction Records Policy 329

A. Because all job qualifications have a disparate impact on some 

protected group, disparate impact theory is a sprawling, incoherent 

mess. 

A central problem with disparate impact liability is that all job qualifications have a 

disparate impact. Those that relate to criminal background checks are by no means special. 

It is no exaggeration to state that there is always some protected group that will do 

comparatively well or comparatively poorly with any particular job qualification. As a 

group, men are stronger than women, while women are generally more capable of fine 

handiwork. Chinese Americans and Korean Americans score higher on standardized math 

tests and other measures of mathematical ability than most other ethnic groups. 

Subcontinental Indian Americans (and also Hindus) are disproportionately likely to have 

experience in motel management. Norwegian Americans (and also Lutherans) are more 

likely to have experience growing durum wheat. Women tend to get better grades in school 

than men.37 And Unitarians are more likely to have a college degree than Baptists. See 

Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (recognizing that disparate impact 

theory would have to apply to subjective as well as objective job qualifications).38 

Some of the disparities are surprising. Cambodian Americans are disproportionately 

likely to own or work for doughnut shops and hence are more likely to have experience in 

that industry when an employer calls for it—apparently because a Cambodian immigrant 

happened to get a job at a doughnut shop and passed his skills onto members of his 

immigrant community. See Seth Mydans, Long Beach Journal: From Cambodia to 

Doughnut Shops, N.Y. TIMES (May 26, 1995). Other disparities have more obvious origins: 

Non-Muslims are more likely to have an interest in wine and hence develop qualifications 

necessary to get a job in the wine industry than are Muslims, because Muslims tend to be 

non-drinkers. 

Will Unitarians always be more likely to graduate from college than Baptists? Will 

Cambodian Americans always have a strong position in the doughnut industry? No one can 

say. Our multi-racial, multi-faith, multi-ethnic nation is complicated, and it won’t be getting 

any simpler anytime soon. 

Only one thing is for certain: There is no end to racial, religious, color, sex and 

national origin disparities in job qualifications that one will find if one looks carefully. 

Indeed, I will happily write a check for $10,000 to the favorite charity of the first person who 

identifies an actual job qualification—one that has actually been used to separate a 

 37 See Gail Heriot & Alison Somin, Affirmative Action for Men? Strange Bedfellows and Strange 

Silences in the Public Debate Over Discrimination Against Women In College Admissions, 12 ENGAGE 14 

(December 2011). 

38 The qualifications that have given rise to disparate impact claims hiring, promotion and retention 

include veterans’ preferences, employee performance reviews and seniority. See Brown v. Puget Sound Elec. 

Apprenticeship & Training Trust, 732 F.2d 726 (1984); Terry v. City of San Diego, 2012 U.S. Dist. LEXIS 

7661 (S.D. Cal. 2012); Stagi v. Amtrak, 407 F. Supp. 2d 671 (E.D. Pa. 2005). 
330 Commissioners’ Statements

significant number of successful from unsuccessful job applicants—that he or she can prove 

does not have a disparate impact on any racial, religious, color, sex or national origin group. 

I submit it cannot be done. Even picking job applicants by the first letter of their surnames 

will have disparate impact based on national origin (and probably other classifications).39

Given all this, Representative William McCulloch’s statement that the “[i]nternal 

affairs of employers ... must not be interfered with except to the limited extent that 

correction is required in discrimination practices” sounds quaint and naïve. See supra at note 

9. So long as disparate impact liability is the law, employer discretion in hiring is just an 

illusion and the labor market is anything but free and flexible.40 All decisions are subject to 

second-guessing by the EEOC or by the courts. This is a profound change in the American 

workplace—and indeed in American culture. 

Supporters of disparate impact liability sometimes argue that disparate impact’s 

ubiquity is not a problem, because the EEOC has agreed to abide by a “four-fifths” or “80% 

rule.” Under the Uniform Guidelines on Employee Selection Procedures, if a particular job 

qualification leads to a “selection rate for any race, sex, or ethnic group” that is “greater than 

four-fifths” of the “rate for the group with the highest rate” it will not be regarded by federal 

enforcement agencies as evidence of adverse impact.” This is cold comfort. First of all, 

particularly when the population is broken into ethnic groups, selection rates of less than 

four-fifths relative to the ethnic group with the highest rate are the rule and not the exception. 

Consider, for example, the horse racing industry. Of the top five grossing North American 

jockeys of 2012, all are Hispanic males. Height and weight restrictions make it less likely 

that an African- or Irish-American male will qualify. Furthermore, this supposed limitation 

on disparate impact is not binding on private litigants (and does not even guarantee which 

approach federal agencies will take).

Moreover, while the “four-fifths” rule purports to be practical, it is useless in practice. 

Prior to adopting a particular job qualification, employers usually have no way of knowing 

what the selection rates will be. All they can be sure of is that the results won’t be equal 

across the board, since nothing ever is.

As a consequence, modern hiring and firing practices must be shrouded in secrecy. 

Employers do not dare advertise clear job qualifications for fear they will attract a lawsuit. 

Performance tests, indeed any kind of innovative hiring practices, are invitations to a 

lawsuit.41

 39 I note that Chinese-Americans disproportionately have surnames beginning with “L”, “W”, and “Y”; 

and Americans of Scottish ancestry disproportionately have surnames beginning with “Mc”. 

 Wise employers try to be on good terms with the EEOC, knowing that when 

40 Disparate impact liability has been held to apply to promotions and terminations too. See George v. 

Farmers Electric Cooperative, Inc., 715 F.2d 175 (5th Cir. 1983); Wilmore v. Wilmington, 699 F.2d 667 (3d Cir. 

1983).

41 Heman Belz, EQUALITY TRANSFORMED: A QUARTER-CENTURY OF AFFIRMATIVE ACTION 

(1991).
Criminal Background Checks and the EEOC’s Conviction Records Policy 331

everything is potentially illegal, the name of the game is to avoid antagonizing the 

regulator.42

The 2012 Guidance is itself a good example of how the system sometimes works. It 

does not prohibit or restrict employers from inquiring into applicant’s arrest and conviction 

record. But it makes it less likely they will be willing to by requiring them to jump through 

hoops before they can decline to hire an applicant on account of such a record, and making it 

more likely they will be sued if they do decline to hire. 

In general, employers cannot have rules that simply screen out ex-offenders; those that 

screen out some ex-offenders will be under great pressure to hire others in order to 

demonstrate that they are not simply screening out all of them. Employers must in most 

cases conduct “individualized assessments,” which include “notice to the individual that he 

has been screened out because of a criminal conviction” and “an opportunity for the 

individual to demonstrate that the exclusion should not be applied due to his particular 

circumstances.” 2012 Guidance at 14. The procedure is so cumbersome and fraught with 

risk of litigation that one way or another employers will act to avoid it.

Note that disparate impact theory is essentially incoherent. Even when it is applied only 

for the benefit of women and minorities, for every protected group that is benefitted by 

prohibiting a particular job qualification, there is always a protected group that is harmed. If 

the EEOC hoped to benefit African Americans and Hispanics by issuing its guidance on 

criminal background checks, it did so with the knowledge that other groups, including Asian 

Americans, Quakers, and women, will be disadvantaged by reducing employers’ discretion to 

reject applicants with criminal records. Logically, an employer who eliminates a job 

qualification that had worked to the advantage of Asian Americans, Quakers, and women in 

the past must be required to demonstrate business necessity too.

 42 Supporters of disparate impact liability similarly argue that the EEOC has not attempted to push 

disparate impact to its logical limits. Apparently, we are not to worry about a body of law that makes 

everything potentially illegal until the day the EEOC officials are seen by these supporters as actually enforcing 

that law. But selective enforcement is simply an opportunity for political favoritism. It isn’t law at all, and I 

find it troubling that anyone would be willing to subject employers to it. Moreover, I note that there has been a 

marked uptick in the interest of various government agencies in disparate impact liability over the past few 

years. Disparate impact liability is a growth industry. For example, the Department of Education has also 

implemented a policy of prohibiting disparate impact in school discipline. See Statement of Gail Heriot in U.S. 

Commission on Civil Rights, School Discipline and Disparate Impact 97 (2012); see also Statement of Todd 

Gaziano in id. at 87. The Department of Housing and Urban Development has attempted to apply it in the 

context of the Fair Housing Act. Twice this issue has been accepted for review by the Supreme Court. Mount 

Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly, 658 F.3d 375 (3d Cir. 2011), cert. granted, 

__ U.S. __ (June 17, 2013), cert. dismissed __ U.S. __ (Nov. 15, 2013); Gallagher v. Magner, 619 F.3d 823 (8th

Cir. 2010), cert granted 132 S. Ct. 548 (2011), cert. dismissed, 132 S. Ct. 1306 (2012). In Gallagher, a 

settlement was reached in part due to the mediation efforts of the Department of Justice, causing the case to be 

withdrawn from the Court’s docket. See Mr. Perez Works the Phones: A Top Justice Official Interferes with a 

Supreme Court Case, WALL ST. J. (Mar. 28, 2012). Just a few weeks ago, the Mount Holly case was also 

settled. Rigging Anti-Discrimination Law: With Township of Mount Holly v. Mount Holly Gardens Citizens, 

Another Disparate Impact Housing Lawsuit Gets Quashed, WALL ST. J. (Nov. 18, 2013). 
332 Commissioners’ Statements

Note also that disparate impact liability does not simply interfere with an employer’s 

ability to “set his qualifications as high as he likes” and a job applicant’s ability to draw the 

employer’s attention to the characteristics that make him suited for the job in question. It 

also interferes with the ability of state and local governments to regulate employment. The 

EEOC takes the position that the Supremacy Clause vaults its interpretation of Title VII 

regarding criminal background checks over state legislation requiring employers to run 

criminal background checks on certain kinds of hires (e.g. employees who work with the 

aged). 2012 Guidance at 24.

B. Disparate Impact Liability at Least in the Context of Criminal 

Background Checks May Be Doing More Harm than Good.

Also troubling is the evidence that disparate impact liability may not even accomplish 

its goal of increasing employment opportunities for women and minorities. 

The 2012 Guidance is again an example. In Harry J. Holzer, Steven Raphael &

Michael A. Stoll, Perceived Criminality, Criminal Background Checks, and the Racial 

Hiring Practices of Employers, 49 J.L. & ECON. 451 (2006)(“Perceived Criminality”), the 

authors discussed the double effect of using criminal background checks. As they explain, it 

must be kept in mind that African-American and Hispanic men are not simply more likely to 

have a criminal record, they are likely to be perceived that way too. Consequently, if the 

2012 Guidance discourages some employers from checking the criminal background of job 

applicants out of fear of liability, some will almost certainly shy away from hiring AfricanAmerican or Hispanic males in the (not necessarily unfounded) belief that members of these 

groups are somewhat more likely to have criminal records than white or Asian American 

male applicants. Put differently, the EEOC’s attempt to prevent the “disparate impact effect” 

creates an incentive for a “real discrimination effect.” 

Of course, prohibiting real discrimination is exactly what Title VII was supposed to be 

about. Congress was well aware that some discrimination—call it “statistical 

discrimination”—is rooted in stereotypes that may or may not have some basis in fact. For 

example, women really are on average less physically able to lift heavy weights than men. 

But if an employer wanted an employee who was strong, well-educated, good with people, 

mathematically inclined or trustworthy, Congress took the position that the employer should 

look for evidence of those characteristics and not depend on racial, gender, religion or 

national origin stereotypes. But the success of that approach depends upon the ability of 

employers to seek evidence of the actual desired traits. If the employer is looking for 

trustworthy employees who will not commit crimes, they need some source of information. 

The applicant’s criminal record (or lack of a criminal record) is often the best method for 

separating the cases that are most likely to be a problem from those that are not. If 

employers are prevented from using the information they can obtain through criminal 

background checks, they may be tempted, consciously or unconsciously, to dispense with the 

checks and use race as a proxy for criminal record. 

Other employers may make adjustments to their hiring policies that are not in any way

motivated by race, but which ultimately decrease the likelihood that African American and 

Hispanic job applicants will be hired. Suppose, for example, an employer regularly hires 
Criminal Background Checks and the EEOC’s Conviction Records Policy 333

young, unskilled, high school drop-outs as packers for his moving van business. Given the 

business location’s demographics, this yields a labor pool that is disproportionately African 

American and Hispanic, but not overwhelmingly so. Until his lawyer instructed him that the 

requirement of “individualized assessments” made excluding applicants with criminal 

records too risky, he had been doing criminal background checks on all job applicants and 

declining to hire most of those with a record. But after he stopped acting routinely on those 

checks, he hired a young, white 19-year-old who ended up stealing from one of the 

employer’s customers. Another white recent hire turned out to have a serious drug problem 

(in addition to his criminal record). Criminal background checks would have identified these 

employees as risky, but the employer had decided he needed to hire anyway to demonstrate 

his compliance with the 2012 Guidance. In order to deal with the problem, he decides to 

convert the full-time jobs that come open into part-time jobs and to advertise in the campus 

newspaper at a nearby highly competitive liberal arts college. He figures (rightly or 

wrongly) that the students there will likely be more trustworthy than the pool he had been 

hiring from. Given the demographics of the school, this yields an overall labor pool that has

proportionately fewer minorities. The EEOC guidance would have accomplished precisely 

the opposite its intentions. 

From a policy standpoint, one obvious question is which effect dominates—the 

disparate impact effect or the disparate treatment one. The evidence adduced by the authors 

of Perceived Criminality indicates that it could be the latter. That article examined the 

answers to interview questions provided by slightly over 3000 employers that hired workers 

without college degrees from Atlanta, Boston, Detroit and Los Angeles during the early 

1990s. Approximately half those employers either always or sometimes conduct criminal 

backgrounds on job applicants. Further data collected in 2001 in Los Angeles showed this 

number had climbed from 48.2% to 62.3% for that city specifically.

The article found that employers who conduct background checks were more likely to 

have recently hired an African American applicant than employers who do not. Among 

those employers who were unwilling to hire ex-offenders, the employers who checked were 

10.7% more likely to have recently hired an African American. This finding was highly 

significant.43

 43 It is always difficult to tease out what is cause and what is effect. In conducting studies of this kind, 

one could argue that the reason that employers who undertake background checks are more likely to hire 

African Americans is that they face labor pools that are heavily African American and are biased against 

African Americans. But the authors used statistical methods to account for this possibility as best they could 

and still found evidence that background checks helped.

Similarly, research has been undertaken attempting to confirm or refute the hypothesis that easy 

availability of criminal background information overall benefits black males as a group by comparing the blackto-white wage ratio in states that make criminal records broadly available to that in states that do not. Shawn D. 

Bushway, Labor Market Effects of Permitting Access to Criminal History Records, 20 J. CONTEMP. CRIM.

JUSTICE 276 (2004). Bushway’s data did indeed show that states that make criminal records broadly available 

have higher black-to-white wage ratios, but those data were too skimpy for this difference to be statistically 

significant. Bushway has called for more research in this area. Id. at 288-89.
334 Commissioners’ Statements

V. Since Congress’s Purpose in Adopting Disparate Impact Liability in 1991 Was 

to Confer an Economic Benefit on Racial Minorities (and Women), It Must Be 

Subjected to Strict Scrutiny—Scrutiny That it Likely Cannot Withstand.

A. The Application of Disparate Impact Liability Was Intended to Be 

 and in Fact Is Racially Discriminatory.

To my knowledge, the EEOC has never brought a disparate impact investigation or 

lawsuit on behalf of white males. While the Uniform Guidelines on Employee Selection 

Procedures do not explicitly limit disparate impact liability to cases in aid of women and 

minorities, such a policy can be inferred from the EEOC’s enforcement history. Indeed, it is 

difficult to avoid.

The Supreme Court has never entertained a disparate impact case on behalf of anyone 

other than women and racial minorities, and its past decisions indicate it did not expect to. In 

Griggs the Court repeatedly noted that the purpose of disparate impact liability was to assist 

African Americans or non-whites in particular. One of the “objective[s] of Congress in the 

enactment of Title VII,” it wrote, “was to “remove barriers that have operated in the past to 

favor an identifiable group of white employees over other employees.” Id. at 429-30 

(emphasis added). It concluded that if “an employment practice which operates to exclude 

Negroes cannot be shown to be related to job performance, the practice is prohibited.” Id. at 

431 (emphasis added). This language was consistent with the EEOC’s Guidelines on 

Employment Testing Procedures (August 24, 1966) upon which the Court relied, which 

referred to the problem of “inadvertently excluding qualified minority applicants through 

inappropriate testing procedures” and the need to be “[m]indful of the special concerns of 

minorities.”

In 1981, the U.S. Commission on Civil Rights issued a report that flatly stated that 

disparate impact liability “cannot be sensibly applied to white males” given that the purpose 

of the liability is to uproot historical and contemporary sexism and racism. U.S. Commission 

on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination 

17 n.20 (1981). Contemporary commentators agreed. See, e.g., Martha Chamallas, Evolving 

Conceptions of Equality Under Title VII: Disparate Impact Theory and the Demise of the 

Bottom Line Principle, 31 U.C.L.A. L. REV. 305, 366-68 (1983) (“In sum, disparate impact 

has been inherently one-sided. Blacks and women may object to a test that tends to reduce 

job opportunities for them. ... It is probable that the courts, in an effort to reduce the 

intrusion on employer discretion, will continue to limit disparate impact challenges to those 

brought by minorities.”); David A. Strauss, The Myth of Color Blindness, 1986 SUP. CT.

REV. 99 (arguing that affirmative action and disparate impact theory are conceptually 

related).

The only court to address the issue squarely also agreed that disparate impact theory is 

ordinarily unavailable to white males. Livingston v. Roadway Express, Inc., 802 F.2d 1250, 

1252 (10th Cir. 1986) (“in impact cases ... a member of a favored group must show 

background circumstances supporting the inference that a facially neutral policy with a 

disparate impact is in fact a vehicle for unlawful discrimination.”). While a few white, male 
Criminal Background Checks and the EEOC’s Conviction Records Policy 335

private litigants have attempted to employ a disparate impact theory in Title VII cases, to our 

knowledge none has ever secured a judgment in his favor. 

That was the zeitgeist when Congress undertook to amend Title VII in the early 1990s. 

Members who supported adding disparate impact liability to the statute perceived it as 

applying to women and racial minorities in particular. See, e.g., Statement of Sen. Glenn, 

137 Cong. Rec. 29,064 (1991) (“The Civil Rights Act of 1991 would reverse ... Wards Cove 

v. Atonio and restore ... Griggs v. Duke Power Co. In Griggs, the Supreme Court held that 

practices which disproportionately exclude qualified women and minorities from the 

workplace are unlawful unless they serve a business necessity.”); Statement of Sen. 

Metzenbaum, 137 Cong. Rec. 33,483 (1991) (The 1991 amendments provide “that 

employment practices which disproportionately exclude women or minorities are unlawful, 

unless employers prove both that these practices are ‘job related for the position in question’ 

and that they are ‘consistent with business necessity.'"); Statement of Sen. Dodd, 137 Cong. 

Rec. 29,026 (1991) (“[I]n Wards Cove Packing Co. v. Atonio, the Supreme Court overturned 

an 18-year precedent set by the Griggs v. Duke Power Co. decision regarding ... 

discrimination based upon the disparate impact of business hiring of minorities.”); Statement 

of Sen. Kohl, 137 Cong. Rec. 29,048 (1991) (“Under this proposal employers must justify 

work rules if the employee shows that the rules have a disparate impact on women and 

minorities.”); Statement of Rep. Ford, 137 Cong. Rec. 13,530 (1991) (“The Griggs standard 

worked well for nearly twenty years. Under Griggs, employers who chose to use selection 

practices with a significant disparate impact on women or minorities had to defend the 

practices by showing business necessity.”); Statement of Rep. Stenholm, 137 Cong. Rec. 

13,537 (1991) (“The substitute creates a new standard of ‘business necessity’ that a business 

must meet to defend an employment practice whose result is a ‘disparate impact’ - meaning 

the percentage of the employer’s work force comprising women, minorities, or a given 

religious group, does not almost identically match that group's percentage in the available 

labor pool.”); Statement of Rep. Fish, 137 Cong. Rec. 13,539 (1991) (“The complaining 

party in a disparate impact case carries the heavy burden of linking adverse impact on 

women or members of minority groups to a specific practice or practices unless the 

employer's own conduct essentially forecloses the possibility of establishing such linkage.”). 

For additional examples, see Charles A. Sullivan, The World Turned Upside Down?: 

Disparate Impact Claims by White Males, 98 NW. L. REV. 1505, 1539 n.169 (2004)(“Upside 

Down”).

Contemporary media reports also support the understanding that the amendments’ 

disparate impact provisions apply only to women and minorities. See, e.g., Robert Pear, With 

Rights Act Comes Fight to Clarify Congress’s Intent, N.Y. TIMES (November 18, 1991) 

(Under the new legislation, “[i]f workers show that a particular practice tends to exclude 

women or minority members, then the employer must show that the practice is ‘job-related 

for the position in question and consistent with business necessity.’”).

More recent scholars have agreed that “[w]hat authority there is supports the view that 

employment practices with disparate impacts on historically dominant classes are, as a matter 

of law, not actionable under Title VII.” Richard A. Primus, Equal Protection and Disparate 

Impact: Round Three, 117 HARV. L. REV. 493, 528 (2003). See John J. Donohue III, 
336 Commissioners’ Statements

Understanding the Reasons for and Impact of Legislatively Mandated Benefits for Selected 

Workers, 53 STAN. L. REV.

 

897 (2001) (“I conclude that disparate impact analysis will not 

protect white males as a matter of theory. ... The first prong of a disparate impact case—

finding a practice that adversely affects a member of a protected class—will not be met since 

white males will not be deemed to be ‘protected’ under this doctrine.”)

Indeed, the belief that disparate impact theory is not applicable to all groups is so 

prevalent that no less ubiquitous an authority than Wikipedia begins its entry for “Disparate 

Impact” with the sentence, “in United States employment law, the doctrine of disparate 

impact holds that employment practices may be considered discriminatory and illegal if they 

have a disproportionate ‘adverse impact’ on members of a minority group.” 

http://en.wikipedia.org/wiki/ Disparate_impact (last visited Aug. 20, 2013).

But there is also increasing recognition that this raises thorny constitutional issues. One 

scholar has said that he used to “firmly announce” to his students that disparate impact theory 

“was not available to whites and males.” See Upside Down at 1505. When the Court began 

to take the position that strict scrutiny must be employed on behalf of members of majority as 

well as minority races, see Grutter v. Bollinger, 539 U.S. 306 (2003, he began to realize that 

applying disparate impact theory only on behalf of women and racial minorities would raise 

serious constitutional difficulties. He therefore urged a reinterpretation of disparate impact 

liability so that it would be applicable to white males as well.

There are several problems with such a reinterpretation, which would, in essence, 

extend the reach of a statute whose reach is already extraordinary. Among other things, there 

is no evidence that Congress would have supported such an extension. Suppose Congress 

had passed an unconstitutional tax on Asian Americans. It would be improper for a court to 

simply impose that tax on all Americans, since that court has no evidence that Congress 

would have been willing to tax all Americans if it had known its original tax would be found 

unconstitutional. The proper thing for the Court to do would be to nullify the original tax and 

let Congress decide whether to promulgate legislation imposing a generally applicable tax. 

The same logic applies here.

Moreover, even if there were overwhelming evidence that Congress would prefer a 

generally applicable disparate impact doctrine to no disparate impact doctrine at all, it would 

make no difference. Even generally applicable disparate impact theory is racially 

discriminatory. The Constitution protects individuals from race discrimination, not groups. 

If disparate impact theory is applied to help African Americans where they are underrepresented and whites where they are under-represented, the result is more race 

discrimination, not equal treatment. It doesn’t make a white applicant for a job as a New 

Haven fire fighter feel better to know that the playing field would be tilted in his favor if he 

were applying for a position in the NBA. He is only qualified for the fire fighting job. 

B. In the Absence of a Compelling Purpose and Narrow Tailoring, Title 

VII’s Disparate Impact Liability Must Fail. 

A law that discriminates on the basis of race is permissible only if there is a compelling 
Criminal Background Checks and the EEOC’s Conviction Records Policy 337

purpose served by it, and the discriminatory law is narrowly tailored to serve that purpose. 

See Fisher v. University of Texas, 133 S. Ct. 2411 (2013). Congress did not attempt to offer 

a principled basis for upholding disparate impact liability under Title VII in the face of strict 

scrutiny: They apparently didn’t think they were required to. I am dubious that such a basis 

can be offered. 

A few scholars have attempted to step up to the plate, but their efforts leave much to be 

desired. Professor Richard Primus suggests the argument that disparate impact doctrine may 

have been regarded by Congress as “a prophylactic measure that is necessary because 

deliberate discrimination can be difficult to prove.” Primus at 520. Ultimately, despite his 

view that the Griggs approach to Title VII is “normatively desirable,” he rejects this 

argument as to Congress’s motives as “neither technically smooth nor normatively 

desirable.” Id. at 523. I agree that for the reasons Primus discusses, this does not describe 

Congress’s motive in passing the 1991 Amendments. It cannot account for the allocation of 

burdens and defenses. It therefore cannot be put forth to justify disparate impact doctrine. 

Congress would need to re-vamp the law extensively in order to fit this very square peg into 

that round hole. 

So what compelling purpose can be offered? And what evidence is there that it is 

narrowly tailored to serve such a purpose? Primus suggests workplace integration. But I 

submit that the evidence that this doctrine has helped integrate the workplace or even has 

systematically advanced the employment opportunities of African Americans, Hispanics, 

American Indians and/or women is thin to non-existent. See Ian Ayres & Peter Siegelman, 

The Q-Word as Red Herring: Why Disparate Impact Liability Does Not Induce Hiring 

Quotas, 74 TEX. L. REV. 1487 (1996) (disparate impact liability may make employers more 

reluctant to hire minority employees because disparate impact liability makes firing or 

demoting them later more risky). There is certainly no showing that it has actually served a 

compelling purpose or that it is narrowly tailored to that purpose. This sprawling and 

incoherent doctrine unduly complicates the American labor market in a time that the 

economy can ill-afford such a blow to its vitality. 

It is interesting to compare the EEOC’s efforts to require that employers (including 

small employers) prove that their job qualifications are job-related and a matter of business 

necessity with the precision of a social scientist to the utter lack of evidence that disparate 

impact liability is narrowly tailored to serve a compelling interest.

VI. An Addendum on the Problem of Record Error.

Another issue raised in the Kladney-Achtenberg draft Statement is that there are 

sometimes errors in criminal background records. It is worth pointing out here that the 

Kladney-Achtenberg draft Statement itself contains a few errors. These errors may tend to 

make the problem seem larger than it is (although it is certainly not my intent to suggest 

these records are perfect). For example, as evidence that errors in criminal background 

checks are surprisingly common, the Kladney-Achtenberg draft Statement reports that in 

connection with the Transportation Security Administration’s FBI screenings for port 

workers in 2007, more than 120,000 applications for port positions were “initially 
338 Commissioners’ Statements

disqualified due to a background check,” but that “[m]ore than half of those applicants filed 

appeals to prove their eligibility and 94% of those appeals were successful.”

Not true. Overwhelmingly these were waivers and not appeals—and there is a crucial 

distinction between the two. TSA is required by law to fingerprint all port workers and run 

those fingerprints against the FBI’s database. If a record of possible past criminal activity is 

uncovered, the port worker is routinely notified and given the opportunity to seek a waiver or

to appeal, depending upon the situation. Most offenses can be waived; some cannot be. If 

one’s offense is waivable, one need only convince TSA that, despite one’s record, one is not 

a security threat. When TSA sent out its notifications, it anticipated that minor offenses that 

bear no relationship to terrorism, such as a 30-year-old conviction for public drunkenness, 

would be waived at the agency’s discretion. The agency was simply following its normal 

procedures to notify all employees of any FBI record it had obtained and providing an 

opportunity for a response. The fact that a large number of waivers were granted is not 

evidence of faulty information supplied by the FBI. A high rate of successful requests for a 

waiver was fully expected.

Since some offenses are permanently non-waivable or waivable only after a certain 

period of time has passed, evidence that one has committed such an offense can be rebutted 

only by evidence that the port worker did not in fact commit the offense (or, in appropriate 

cases, that the offense occurred long enough ago to qualify for a waiver). In this situation, an 

appeal, rather than a waiver, is the proper procedure. Suffice it to say that there were 

massively more successful requests for waiver (where the accuracy of the records were not 

denied) than there were successful appeals (where the basis of the appeal was that the FBI 

records were inaccurate). Appeals are rare. The Kladney-Achtenberg draft Statement 

suggesting the contrary is simply inaccurate.

The Kladney-Achtenberg draft Statement also reports that a study by the National 

Employment Law Project, a workers’ rights organization, “found that approximately 600,000 

reports obtained from the FBI contained some form of error.” For this fact, the draft 

statement cites an article from the Washington Post, which in fact stated, “The advocacy 

group [i.e. NELP] estimates that as many as 600,000 of those reports contain incomplete or 

inaccurate information.” Ylan Q. Mui, Growing Use of FBI Screens Raises Concerns About 

Accuracy, Racial Bias, WASH. POST (July 29, 2013)(italics added). “As many as 600,000” 

is not the same thing as “approximately 600,000” especially coming from an advocacy 

group. It is an outside estimate. 

Curiously, since there are many such records in the FBI database, 600,000 would 

actually be an error rate of about 1%--rather low in view of the fact that as far as NELP has 

been able to show all the errors are due to incomplete data. NELP did no independent 

research and did not uncover a single case of inaccurate (as opposed to incomplete) 

information. 

But all this is neither here nor there, because the Washington Post’s article discussion 

of the NELP study was inaccurate, just as the Kladney-Achtenberg draft statement’s 

discussion of the Washington Post article was an inaccurate account of the Washington Post 
Criminal Background Checks and the EEOC’s Conviction Records Policy 339

article. Following the data on this topic is like opening a set of Russian matryoshka dolls one 

by one and discovering that each doll is different from the previous one. NELP’s 600,000 

was not an estimate of the number of inaccurate records. Instead, it is NELP’s estimate of 

the number of “workers” who are “potentially harmed in their job search.” That would be a 

more serious matter if it weren’t for (1) the word “potentially” and (2) the fact that it appears 

to be a wild guess, based on numerous inaccurate assumptions.

I wish I had the time to sort through all the information—accurate and inaccurate—

that is out there concerning the accuracy of the FBI database. But given time limitations, it 

makes more to point out that the FBI database is not used for the kinds of background checks 

that are most commonly made: 

1. The FBI database is not used for routine criminal background checks by 

potential employers that are not required by law. State records are ordinarily 

used for that purpose instead. According to The Attorney General’s Report on 

Criminal History Background Checks (which is the source used by NELP):

“Most of the non-criminal justice checks using FBI-maintained criminal 

history are done under the authority of Pub. L. 92-544, a federal law 

originally passed in 1972, that allows for the sharing of FBI-maintained 

criminal history information for licensing and employment background 

checks by state or local governmental agencies. These statutes generally 

require background checks in certain areas that the state has sought to 

regulate, such as individuals employed as civil servants, day care, school, 

or nursing home workers, taxi drivers, private security guards, or 

members of regulated professions. The results of these checks are 

supplied to public agencies that apply suitability criteria established by 

those agencies or under state law. ... In addition, the National Child 

Protection Act (NCPA) and the Volunteers for Children Act (VCA) allow 

state governmental agencies without requiring a state statute to conduct 

background checks and suitability reviews of employees or volunteers of 

entities providing services to children, the elderly, and disabled persons.” 

Id. at 19.

2. According to the same Department of Justice report, “State records are also 

more complete and up-to-date than the FBI-maintained records.” Id. at 4. 

These are the records that private employers conducting criminal background 

checks are more likely to using (unless they have some statutory authority that 

allows them access to the FBI records). Id.

3. As of 2006, the rate of missing final dispositions in the FBI database was 

indeed unacceptably high—estimated by the Department of Justice at 

approximately 50%. (Id. at 7) Older records were more likely to contain 

missing data than newer records. For example, the record of an arrest might 

not have any information about whether the arrestee was charged or 

eventually convicted of a crime. (Id. at 7). In addition, the rate of missing 
340 Commissioners’ Statements

disposition data for minor crimes (like drunk driving) was higher than the rate 

of missing disposition data for serious crimes.

Of course, there are errors and of course more needs to be done to ensure the accuracy of 

both the FBI database and state and other databases. Wherever there are human beings, there 

will also be errors. The real issue is what the response to inevitable human error should be. 

Here is the answer is emphatically not to discourage employers from acting on information 

unless they can be absolutely sure it is accurate, seldom does anyone have the luxury of 

being able to make day-to-day decisions on information that they know to be 100% accurate. 

Instead, what is needed is a procedure for correcting and updating criminal records much as 

there is for correcting and updating credit records. No one should be surprised to learn that 

the Fair Credit Reporting Act already provides such a procedure. If there are ways to 

improve the procedure, I suspect most Americans would support them.

VII. CONCLUSION

The Reverend Martin Luther King, Jr. famously looked forward to when his children 

would be judged by the content of their character rather than the color of their skin. Current 

law is just the opposite. Race may be the basis for preferring one job applicant over another. 

See United Steelworkers v. Weber, 443 U.S. 193 (1979) (permitting some affirmative action 

plans). But under the EEOC’s guidance, the content of one’s character, at least as revealed 

by one’s criminal record, cannot be without risking litigation. Something is wrong with this 

picture.

***
341 Commissioners’ Statements

Statement of Commissioners David Kladney and Roberta Achtenberg

EEOC Background Check Guidance

November 2013

NOTE: At the August 16, 2013 meeting of the U.S. Commission on Civil Rights, 

Commissioner Kladney objected to the following wording in the draft report as inaccurate 

and confusing. He requested the wording, “Taken as a whole it emphasizes the judgment of 

the EEOC over that of employers in the selection or retention of employees with criminal 

histories," be stricken from the report. He could not obtain a majority for his motion. Staff 

suggested the word “subjective” be placed before the word judgment. That word was 

rejected. Then, our Chairman suggested the term “discretionary” be placed in front of the 

word judgment. Commissioner Kladney objected, but when he could not find a suitable 

alternative, he voted no on the change. The Commission passed the following language 6 to 

2, with Commissioner Yaki joining him in dissent.

The final wording passed by the Commission states:

"Although the 2012 guidance acknowledges as a legitimate selection 

concern the physical or other security risks to customers or other 

employees inherent in hiring any employee, it leaves employers exposed 

to the discretionary judgment of the EEOC as to individual hiring 

decisions."

Although “discretionary judgment” could be interpreted as akin to “prosecutorial discretion,” 

Commissioner Kladney’s concern was and is that the wording makes it sound like the EEOC 

is simply capricious and strikes unwitting employers like a bolt from the blue. The Guidance 

lays out EEOC’s understanding of Title VII with respect to arrest and conviction records. 

The Guidance informs employers of conduct that complies with or violates Title VII and 

could thereby be subject to an enforcement action by EEOC. Were the EEOC to bring a case 

willy-nilly—as suggested by the language to which he objected, the defendant (subject of the 

enforcement action) would prevail.

The United States Supreme Court holds the EEOC and complainants to a very “high standard 

of proof” that can be very difficult for plaintiffs (EEOC and complainants) to meet. 

Therefore, success by individuals should indicate that their claims were legitimate.

1

 1 “A second constraint on the application of disparate impact theory lies in the nature of the "business necessity" 

or "job-relatedness" defense. Although we have said that an employer has "the burden of showing that any 

given requirement must have a manifest relationship to the employment in question," Griggs, 401 U.S. at 401 

U. S. 432, such a formulation should not be interpreted as implying that the ultimate burden of proof can be 

shifted to the defendant. On the contrary, the ultimate burden of proving that discrimination against a protected 

group has been caused by a specific employment practice remains with the plaintiff at all times.” Watson v. Fort 

Worth Bank and Trust, 487 U.S. 977, 992, 997, 999 (1988).
342 Commissioners’ Statements

Statement

The members of our society continue to grow more mobile in terms of both their

employment and their residence. Policing and mass incarceration policies have resulted in

tens of millions of us gaining “a record,” which could confound our ability to start a new job

or sign a new lease.

Within reason, a person should be judged by her or his past actions. Employers should be

able to protect their employees and customers from people with a demonstrated proclivity for

violence and theft. At the same time, our society would be a more dangerous place if we

needlessly subjected able workers and their families to joblessness and poverty because of an

aversion to any sort of criminal record.2

We supported this briefing because we had hopes it would help put to rest some

misunderstandings about the new EEOC guidance3 (“the Guidance”) that have been

intentionally perpetrated by some who wish employers to have unfettered discretion in

allowing discrimination in employment of workers. Unfortunately, some briefing

participants—both during the briefing and afterward—have continued to misinform the

public concerning the Guidance.4

Background Checks Are Allowed Under the Guidance

As was affirmed by Carol Miaskoff during the briefing,5 the Guidance does not prohibit the

use of criminal background checks. Although some employers may be “apoplectic” over the

Guidance,6 their agitation is largely the result of fear mongering by folks who ought to know

better. The EEOC has been criticized for not creating bright-line rules or safe-harbors for

employers who comply with the laws of their states. Of course, if the EEOC had done those

things, the same critics would probably criticize them for making up rules that have no

statutory basis—or worse, rules that are in opposition to the federal Civil Rights Act.

Complaints about Safe Harbors are a Red Herring

The fact of the matter is that Title VII is meant to combat employment discrimination on the

2

“Offenders who are provided even marginal employment opportunities are less likely to reoffend than those

not provided such opportunities.” (Uggen, 2000: 542) See: Uggen, Christopher (2000) Work as a Turning Point

in the Life of Criminals: A Duration model of Age, Employment, and Recidivism. American Sociological

Review. Vol. 67. (August: 529-546). 3

 Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights

Act of 1964 (issued April, 2012). Available at: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. 4

 Kirsanow, P. (2013, March 8). [Letter to the editor]. The Wall Street Journal. Bovard, See also: James (2013,

February 15). Perform Criminal Background Checks at Your Peril. The Wall Street Journal. Retrieved from

http://www.online.wsj.com. 5

 Carol Miaskoff, Testimony before the U.S. Commission on Civil Rights, briefing on EEOC Guidance Policy

and the use of criminal background checks, transcript, Washington, DC, December 12, 2012, p. 11, lines 11-15

(hereafter cited as Miaskoff Testimony, Briefing Transcript). 6

 Kirsanow, P. (2013, March 8). [Letter to the editor]. The Wall Street Journal.
Criminal Background Checks and the EEOC’s Conviction Records Policy 343

part of private employers and by state and local governments.7 Research8 shows that black 

males without a criminal record have roughly the same employment prospects as white 

applicants with criminal records. As a result, the “benefit” that black applicants with clean 

criminal records receive from employers’ use of criminal background checks only puts them 

on equal footing with white applicants who have criminal histories. This clearly 

acknowledges continued racial discrimination by employers. If employers could preserve 

discriminatory practices by taking advantage of a safe-harbor law, the efficacy of Title VII 

would be substantially diminished. The drafters of Title VII wisely chose to leave states 

largely free to regulate employment practices within their jurisdiction, which they do. 

Despite the frequent references to employers being apoplectic over the potential demands of 

federal and state law, no one at the briefing could cite a case in which an actual employer 

found himself threatened with a federal lawsuit as a result of his scrupulous compliance 

with state law, or threatened with a state or local enforcement action as a result of 

scrupulous compliance with EEOC guidance concerning criminal records.

We challenge our colleagues on this Commission, who continue to complain about this 

issue, to point to specific, clear cases where this has happened during the 20 plus years 

that the guidance has been in effect.

Comments from “the Public”

A large percentage of public comments the Commission received after this briefing included 

some variation of the following paragraph (emphasis added):

These comments are submitted to supplement the views previously stated by the National 

Association of Professional Background Screeners (“NAPBS”) to the U.S. Commission on 

Civil Rights (“USCCR”) at the December 7, 2012 briefing on the impact of criminal 

background checks and the EEOC’s conviction records policy on employment of black and 

Hispanic workers. Our company is a member of NAPBS, but we also provide these 

comments as an employer who conducts background screens of our employees. I appreciate 

the opportunity to provide these public comments regarding the importance and value of 

using criminal history records both as an employer and a background screening company.

A sizeable number of comments containing the above language were in fact not from 

members of NAPBS. Rather, they were from clients of background screening companies, 

who were clearly encouraged to participate in an Astroturf campaign. Also, people with ties 

to panelist Lucia Bone (e.g. members of her family), submitted a number of other comments. 

 7 42 U.S.C. §2000e-7 (“Nothing in this subchapter shall be deemed to exempt or relieve any person from any 

liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision 

of a State, other than any such law which purports to require or permit the doing of any act which would be an 

unlawful employment practice under this subchapter.”)

8 Devah Pager, Bruce Western, & Bart Bonikowski, Discrimination in a Low-Wage Labor Market: A Field 

Experiment, American Sociological Review, 77, pp. 777-799 (2009). See also Devah Pager, Bruce Western & 

Naomi Sugie, Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with 

Criminal Records, 623 The Annals of the American Academy, pp. 195-199 (2009).
344 Commissioners’ Statements

Many of these comments featured language that was directly quoted from her business’s

website.

Every case cited at the briefing—or in submissions as a result of the briefing—where

violence or theft occurred, happened when employers failed to conduct background

checks.9

 If these employers had applied the EEOC guidance and its elements, these

risky employees would never have been hired. The employers’ failure to use the EEOC

guidance allowed these harms to occur.

Ban The Box

Some of our colleagues will go to any extent to slap the EEOC and its guidance, even though

its approach is to assist the employers so they avoid engaging in employment discrimination.

Though not required, the Guidance suggests a best practice is to delete the box on

employment applications that asks if you have ever been arrested or convicted of a crime.

This best practice helps employers by allowing them to first screen potential employees

based on their skills and past employment record. In the second round of screening,

employers can run a criminal background check to determine the existence of any risk factors

to the employer, employees, customers, or the public. Should something come up in the

criminal background check (assuming the background check is accurate), the employer

would then provide an otherwise qualified job applicant the opportunity to explain any

offense. Employers have the opportunity weigh the nature of the crime, the amount of time

that has passed since the offense, and the relationship of the offense to the job to be

performed. The new procedure is a step in the right direction, unlike the initial employment

denial cases where the employer was not required to allow the applicant an opportunity to

explain anything. The advantage of Ban the Box is that it eliminates the potential hires that

do not have the requisite skill set for the position or those applicants with spotty work records

and work habits while ensuring that the employer rarely faces the question of employment

discrimination against those with a prior record.10

Errors in Consumer Reports and Government Records

Although the problem of inaccurate records was briefly discussed by some of the panelists11

9

 Lucia Bone, Testimony before the U.S. Commission on Civil Rights, briefing on EEOC Guidance Policy and

the use of criminal background checks, transcript, Washington, DC, December 12, 2012, pp. 92-93 and Garen

Dodge, Testimony before the U.S. Commission on Civil Rights, briefing on EEOC Guidance Policy and the use

of criminal background checks, transcript, Washington, DC, December 12, 2012, pp. 108-113.

,

I believe that this issue is one of the most—if not the most—important aspects to consider

when thinking about the use of criminal background records.

10 This is the exact procedure set out by Target, Corp for mass hirings at new stores nationwide and individual

hiring at each of their stores beginning early next year. Wal-Mart, the nation’s largest employer deleted “the

box” in 2010. Three states have adopted the ban the box law for either public employers, private employers or

both. See: Moore, Janet “Target To Ban Criminal History On Job Applications,” October 26, 2013 available at

http://www.startribune.com/business/229310141.html. 11 For references to inaccurate records, review the testimonies of Montserrat Miller and Nick Fishman.
Criminal Background Checks and the EEOC’s Conviction Records Policy 345

Ms. Miller, of NAPBS, stressed the importance of compliance with the Fair Credit Reporting

Act (“FCRA”) and asserted the very high accuracy rates of NAPBS members.12 While we

applaud her insistence on FCRA compliance, we cannot help but to be skeptical of Ms.

Miller’s claim regarding the accuracy of the NAPBS members’ consumer report. Admittedly,

Ms. Miller did not attest to the accuracy herself, but rather she was conveying the rates of

accuracy as reported to her by the NAPBS members.13

One such NAPBS member is HireRight Solutions, a background screening company that

agreed to pay $2.6 million in civil penalties for, among other faults, failing “to follow

reasonable procedures to prevent the provision of obviously erroneous consumer report

information to employers.”14 Perhaps HireRight is not a representative NAPBS member, but

its poor past conduct alone must reduce the overall rate of accuracy of the NAPBS

membership.

Even if there is a high compliance with the FCRA by background screening companies, there

is ample evidence of errors in the public records upon which the screening companies rely. A

study by the Legal Action Center (“LAC”) estimated that there are 2.1 million errors in rap

sheets of persons in New York State.15

The authors of the report suggest that the number of errors may be even higher because they

were employing conservative methods to arrive at their published figure. The most common

errors were missing information concerning the disposition of a case or failures to seal old

violations or dismissals. Of course, these types of errors significantly affect the way an

employer might likely view a prospective employee. A July 2013 study by the National

Employment Law Project (“NELP”)16 confirms that errors have a negative impact on

potential employees. The NELP study found that approximately 600,000 reports obtained

from the FBI contained some form of an error. Highlighting the Transportation Security

Administration's FBI screenings for port workers in 2007, NELP found that more than

120,000 applications for port positions were initially disqualified due to a background check.

More than half of those applicants filed appeals to prove their eligibility and 94% of those

appeals were successful.17

12 USCCR Transcript, Dec. 7, 2012, at 208.

 A spokesperson for the FBI Criminal Justice Information Service

13 Id. Lines 10-12. (“Contrary to popular belief, and as reported in the media, our member companies report to

me 99 percent accuracy rates.”) 14 Employment Screening Services Provider Settles Charges of Violating Fair Credit Reporting Act. Office of

Public Affairs, Department of Justice. August 8, 2012. Available at:

http://www.justice.gov/opa/pr/2012/August/12-civ-986.html. Also see: United States v. HireRight Solutions,

Inc., No. 1:11-cv-01313 (D.D.C. Aug. 8, 2012), available at:

http://www.ftc.gov/os/caselist/1023130/index.shtm. 15 “The Problem of RAP Sheet Errors: An Analysis By the Legal Action Center,” available at

http://www.lac.org/doc_library/lac/publications/LAC_rap_sheet_report_final_2013.pdf. 16 Mui, Ylan Q. “Growing use of FBI screens raises concerns about accuracy, racial bias,” July 29, 2013

available at http://articles.washingtonpost.com/2013-07-29/business/40887352_1_job-applicants-the-fbibackground. Last accessed: August 12, 2013. 17 Ylan O. Mui, Growing use of FBI screens raises concerns about accuracy, racial bias, The Washington Post,

July 29, 2013.
346 Commissioners’ Statements

said that the agency relies on the states to provide criminal records.18 A 2010 Justice

Department report found that as many as two in five records were missing final outcomes in

about half the states.19 To be accurate in reporting inaccurate records is to report nothing at

all. The prevalence of errors in public records—which is increasingly compounded by errors

introduced by online background screening companies20—makes clear the need for

individual assessments. Further, the presence of these errors highlights the importance of

compliance with the notification requirements of the FCRA. When used properly, the FCRA

notification requirements—which inform applicants and employees of adverse information or

actions in their records—create an opportunity for people to correct their records or provide

important supplementary information. This produces a more accurate and complete picture of

prospective employees for the decision-maker.

The result is that employers can avoid missing out on the talents and potential contributions

of otherwise qualified employees and applicants can avoid needless denial of jobopportunities.

***

18 18 Id. 19 Id. See also: WANTED: Accurate FBI Background Checks for Employment by Madeline Neighly and

Maurice

Emsellem. National Employment Law Project July 2013. Available at http://www.nelp.org/page/-

/SCLP/2013/Report-Wanted-Accurate-FBI-Background-Checks-Employment.pdf?nocdn=1. Last accessed

August 13, 2013. 20Especially the less well-established, web-based information clearinghouses (like Spokeo, Pipl, and others).
DECEMBER 2013

U . S . C O M M I S S I O N O N C I V I L R I G H T S

BRIEFING

R E P O R T

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Visit us on the Web: www.usccr.gov

Assessing the Impact of

Criminal Background Checks and the

Equal Employment Opportunity

Commission’s Conviction Records Policy

328757_final cover.indd 1 1/14/14 3:05 PM
U.S. Commission on Civil Rights

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by 

Congress in 1957. It is directed to:

• Investigate complaints alleging that citizens are being deprived of their right to vote by 

reason of their race, color, religion, sex, age, disability, or national origin, or by reason of 

fraudulent practices. 

• Study and collect information relating to discrimination or a denial of equal protection of 

the laws under the Constitution because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice. 

• Appraise federal laws and policies with respect to discrimination or denial of equal pro-

tection of the laws because of race, color, religion, sex, age, disability, or national origin, 

or in the administration of justice. 

• Serve as a national clearinghouse for information in respect to discrimination or denial 

of equal protection of the laws because of race, color, religion, sex, age, disability, or 

national origin. 

• Submit reports, findings, and recommendations to the President and Congress. 

• Issue public service announcements to discourage discrimination or denial of equal pro-

tection of the laws. 

Membersof the Commission

Martin Castro, Chairman

Abigail Thernstrom, Vice Chair

Roberta Achtenberg

Todd Gaziano

Gail Heriot

Peter Kirsanow

David Kladney

Michael Yaki

Marlene Sallo, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue NW, Suite 1150

Washington, DC 20425

(202) 376-8110

www.usccr.gov

This report is available from our publications office ((202) 376–8110) on disk in ASCII Text 

and Microsoft Word 2010 for persons with visual impairments. Hearing-impaired persons may dial 711 from 

any U.S. location for relay services.

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