Road to Re-Entry: Criminal Records and Getting Back into the Workforce

1. Road to Re-Entry: Criminal Records and Getting Back into the Workforce 2011 Annual National Equal Opportunity Symposium August 31, 2011 Arlington, Virginia

2. 1 in 15 African American men incarcerated Why Focus on Reentry? 1 in 100 U.S. adults behind bars • More than 700,000 annual releases from state and federal prisons • 9 million cycle through local jails each year 2 in 3 released prisoners will be rearrested within 3 years 95% will be released to the community • Half will be reincarcerated for new crimes or technical violations • U.S. spends $68 billion/year on corrections

3. Reentry is a Public Safety Issue, but Also an Employment Issue: Context • 2 in 3 men were working/financial contributors before incarceration. Impact on Hiring • Sixty percent of employers surveyed from four major metro areas stated that they would “probably” or “definitely” not be willing to hire an applicant with a criminal record Impact on Earnings • Incarceration reduces annual employment by more than two months and reduces yearly earnings by 40 percent. Broader Impact • Underemployment of individuals with criminal histories lowers overall male employment rates as much as 1.5 to 1.7 percentage points; costing the country $57 to $65 billion per year.

4. Reentry presents a major opportunity to improve public safety, public health, workforce, education, family, and community outcomes.

5. Reentry Council Inaugural Meeting - January 5, 2011

6. Participating Agencies DOJ DOL ED HHS HUD USDA VA DOI DPC WHFBN OVP OMB SSA OPM USICH IRS EEOC ONDCP CSOSA

7. Reentry Council Activities 3 categories of activities: • Actions the federal government can take to better coordinate/leverage resources for reentry • Actions the federal government can take to remove barriers to reentry • Bully pulpit opportunities to advance the reentry agenda, dispel myths/clarify policies, and signal to the field the importance of the issue

8. Reentry Council Activities:Coordinate and Leverage Resources National Reentry Resource Center mapped major federal reentry resources going to states and localities www.nationalreentryresourcecenter.org

9. Reentry Council Activities:MYTHBUSTER SERIES • Fact sheets designed to clarify existing federal policies affecting formerly incarcerated individuals in the areas of public housing, access to benefits, parental rights, and employer incentives. • Examples: • MYTH: People with criminal records are automatically barred from employment. • MYTH: The Federal Government’s hiring policies prohibit employment of people with criminal records. • MYTH: Employers have no federal income tax advantage by hiring an ex-felon.

10. Review federal hiring policies regarding use of arrest and conviction records to ensure they are consistent with federal laws prohibiting employment discrimination • Utilize existing and new tools to better educate key stakeholders in this area • Identify and highlight model hiring policies that encourage greater access to employment opportunities Reentry Council Activities:Address Federal Barriers to Reentry Reduce barriers to employment for returning population Improve access to benefits  Address child support relief 

11. Moment of Opportunity • Bi-partisan interest/support at federal, state, local levels • Cross-agency interest/support at federal, state, local levels • NGOs/faith-based institutions engaged/demand high • Publicsupport for reentry so that individuals can work, pay taxes, rejoin families and communities • Optimisticwe can make a difference – reduce crime, strengthen families and neighborhoods

12. Why would background checks create a civil rights concern?

13. Overrepresentation of People of Color in Criminal Justice System • 1 in 8 African American men in their 20’s is in prison or jail. • In 2009, African Americans were 12.4% of the American population, 28.3% of those arrested • In the corrections population, ratio of African Americans to whites is 5.6 to 1, Hispanics to whites is 1.8 to 1. • Prison population is 93.5 % male, 39 is average age, 37.9% African American, 34.2% Hispanic, 1.8% Native Americans, 1.7% Asian American.

14. Beware of Disparate Treatment! • Study using paired testers in Milwaukee area revealed employer bias • African American & White male college students, identical criminal records • Whites with criminal record preferred over African Americans without a criminal record.

15. Authority of DOJ Employment Litigation Section • Title VII • USERRA • Executive Order 11246

16. Problems with Criminal Background Reports • Inaccurate, 25% include errors serious enough to deny loans or employment • Online providers of background information often fail to ensure data collected for permissible purposes, provide a summary of rights for consumers, and comply with the seven year limitation on reporting arrest information under the FCRA.  CR Investigates. Credit Scores: What You Don’t Know Can Be Held Against You, Consumer Reports, Aug. 2005, 2005 WLNR 11847414 (According to a 2004 survey by the U.S. Public Interest Research Group, 25% of credit reports include errors that are serious enough for an individual to be denied a loan or employment. / Shawn D. Bushway, Michael Stoll and David Weiman (eds.), Barriers to Reentry? The Labor Market for Released Prisoners in Post-Industrial America (Russell Sage Foundation 2007)

17. Criminal History Information Makes A Difference What Influences Employers? • Arrests – 64% of employers are influenced • Non-violent Misdemeanor – 97% of employers influenced • Violent Misdemeanor – 99% of employers influenced • Felonies – All employers influenced

18. Who Is Unemployed? Unemployment Rates by Race/Ethnicity Whites – 8.1% African Americans – 15.9% Hispanics –11.3% Unemployment Rates of College Grads by Race/Ethnicity Whites – 4.3% African Americans – 7.9% Hispanics – 6.0%

19. The Mission of the U.S. Equal Opportunity Commission • The U.S. Equal Employment Opportunity Commission is responsible for enforcing Title VII of the Civil Rights Act, as amended, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. • The agency has a long history of identifying and remedying discrimination in hiring and ensuring job applicants are treated fairly under the laws it enforces. • The EEOC is placing additional, comprehensive emphasis on helping to remove unnecessary barriers to federal employment for those with arrest and/or conviction records.

20. EEOC Guidance on the Use of Arrest and Conviction Records • Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, national origin, religion, or sex. • This law does not prohibit an employer from requiring applicants to provide information about arrests, convictions or incarceration.

21. EEOC Guidance on the Use of Arrest and Conviction Records • The Purpose of the Guidance • Disparate Treatment Prohibited: Employers may not treat people with the same criminal records differently because of their race or national origin. • In the vast majority of cases, employers may not automatically bar everyone with an arrest or conviction record from employment. • Why? An automatic bar to hiring everyone with a criminal record is likely to limit the employment opportunities of applicants or workers because of their race or ethnicity.

22. EEOC Guidance on the Use of Conviction Records • If an employer is aware of a conviction or incarceration, that information should only bar someone from employment when the conviction is closely related to the job, after considering: • The nature of the job, The nature and seriousness of the offense, and The length of time since it occurred.

23. EEOC Guidance on the Use of Arrest Records • Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not assume that someone who has been arrested, but not convicted, did in fact commit the offense. • The employer should allow the person to explain the circumstances of the arrest. • If it appears that he or she engaged in the alleged unlawful conduct, the employer should assess whether the conduct is closely enough related to the job to justify denial of employment. • These rules apply to all employers that have 15 or more employees, including private sector employers, the federal government and federal contractors.

24. What Can You Do? • Educate Employers • Hold employers accountable. • Promote model employment practices. • Empower Clients • Canvas and provide information about available resources. • Provide educational materials (including Mythbusters).

25. Key Resources EEOC RESOURCES • Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964 (1987). This policy statement sets forth the Commission’s position on the use of conviction records under the Title VII of the Civil Rights Act of 1964. Available at http://www.eeoc.gov/policy/docs/convict1.html. • Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII (1990). This policy guidance sets forth the Commission’s procedure for determining whether arrest records may be considered in employment decisions. Available at http://www.eeoc.gov/policy/docs/arrest_records.html. • Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment (1987). This policy statement sets forth the Commission’s position on the use of statistics in charges involving the exclusion of individuals with conviction records in employment. Available at http://www.eeoc.gov/policy/docs/convict2.html. • EEOC Compliance Manual, Race & Color Discrimination Section, Discussion on Conviction and Arrest Records (2006). The Manual Section provides guidance on analyzing charges of race and color discrimination under Title VII of the Civil Rights Act of 1964. Available at http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction. • Office of Legal Council informal discussion letter regarding Title VII and arrest and conviction records. The EEOC Office of Legal Council wrote an informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission. Available at http://www.eeoc.gov/eeoc/foia/letters/2005/titlevii_arrest_conviction_records.html.

26. Key Resources (cont.) • Reentry Council Websitehttp://www.nationalreentryresourcecenter.org/reentry-council-meeting • National Reentry Resource Centerwww.nationalreentryresourcecenter.org • Transition from Prison and Jail to the Community Initiative (NIC)http://nicic.gov/TPJC • Reintegration of Ex-Offenders (DOL)www.doleta.gov/RExO/ • Incarceration and Reentry (HHS)http://aspe.hhs.gov/hsp/11/Incarceration&Reentry/ • Court Services and Offender Supervision Agency http://media.csosa.gov • National Hire Network (state specific listing of governmental agencies and community-based organizations providing reentry services) http://www.hirenetwork.org/resource.html

27. Contacts Civil Rights Center, U.S. Department of Labor Phone: (202) 693-6500 Melanca Clark, Senior Counsel, Access to Justice Initiative, U.S. Department of Justice Email: melanca.d.clark@usdoj.gov Phone: 202-514-7173 Todd Cox, Director, Office of Communications and Legislative Affairs, Equal Employment Opportunity Commission Email: TODD.COX@EEOC.GOV Phone: (202) 663-4191 Audrey Wiggins, Deputy Chief, Employment Litigation Section of the Civil Rights Division , U.S. Department of Justice Email: audrey.wiggins@usdoj.gov Phone: 202-514-8447