COMMISSIONER CHARGE Request - National Employment Law Project


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COMMISSIONER CHARGE Request - National Employment Law Project

  1. 1. HElP Delivering Economic OpportunityNational EmploymentLaw ProjectChristine L. OwensExecutive Director June 9, 2009 o National Office Acting Chairnlan Stuart 1. Ishimaru75 Malden Lane, Suite 601New York, NY 10036 U.S, Equal Employment Opportunity Commission(212) 285~025 tel 131 M Street, NE(212) 285-3044 Washington, DC o Washington, DC Office Dear Chairman Ishimaru:1333 HStreet, NWSuite 300, East TowerWashington, DC 20005 The undersigned organizations, which represent or have membership(202)-533-2585 tel that includes minority persons with arrest or conviction histories, urge(202) 775-0819 fax you to issue a COimnissioners Charge against Bank of America, o California Office Manpower, and the Alameda, California One-Stop Career Center40514" Street, Suile 1400Oakland, CA 94612 ("respondents"), pursuant to Section 706(b) of Title VII of the Civil(510) 663-5700 tel Rights Act of1964, 42 U.S.C. § 2000e-5(b). A Commissioners(510) 663-2028 fax Charge will pelmit the Equal Employment Opportunity Commission o Midwest Office ("EEOC") to detennine whether respondents use of an absolute bar900 Victors Way, Suite 350AnnArbor,M148108 to employment for individuals with criminal records violates Title VII(734) 369-5616 tel l of the Civil Rights Act of 1964 and EEOC guidance, because such(866) 373·8994 fax policies have an unjustified adverse impact on minority applicants for o West Coast Office employment.407 Adams Street SE, Suite 203Olympia, WA 98501(360) 534-9160 tel Blanket prohibitions tllat exclude any individual with a prior criminal(866) 882-5467 fax record from employment disproportionately deprive AfricanBoard of Directors Americans and Latinos of employment opportunities for which theyBelli SI1Ulffitm,Ghair aTe otherwise qualified, Because of their disparate impact, hiringAuthor and Consultant restrictions based on aITest or conviction records are only permissibleElaise L. FoxUFCW Local 1657 when justified by business necessity, a standard that simply cannot beJames Haughton met for overly-broad exclusiollS that do not take into account tlleDirector, Fight Back nature, age and job-relatedness of the offense. Issuance of aJonathan Hiatt, Commissioners Charge will pennit an investigation illto whether oneGeneral Counsel, AFL-CIO of the nations largest employers and staffing agencies and a state Paullgasaki office have violated Title VII, and it will focus much-needed attention Consultant on a widespread, illegal employment practice engaged in by more and Lucille Logan more employers and affecting growing numbers of workers. Community Activist Walter Meginniss Gladstein, Reif & Meginniss James Sessions East Tennessee Interfaith Coalition for Worker Justice I EEOC "Policy Statement on the Issne of Conviction Records Under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et. seq. (1982)" (Feb. Michael Shen Shen &Associates, p.e 4, 1987), available at; EEOC "Policy Guidance on the Consideration of AlTest Records in Employment Decisions under Dr. William E. Spriggs Title VB offue Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. Howard University (1982)" (Sept. 7, 1990), available at http://eeoc_gov/policy/docs/arrestrecords.htm!. Thomas Weeks Director Ohio State Legal Services Assoc. Cathy Wilkinson Low-Wage Worker Activist ~515
  2. 2. Commissioners Charge RequestJune 9, 2009Page Two FactsRespondents widely posted a job announcement for clerical positions at Bank ofAmerica that includes all absolute prohibition on hiring any applicant with a felony ormisdemeanor. A copy of one announcement is attached hereto as Exhibit A. The jobal1l10uncement states: "Qualified candidates must be able to pass: Background Check(no felonies or misdemeallors) ...." The announcement did not distinguish betweenarrests or convictions, alld can certainly be read as applying to both arrests andconvictions.Respondents distributed the job al1l10uncement throughout the San FraJ1cisco Bay Areain the first weeks of March 2009. It applies to over 600 positions for three categories ofworkers, including data entry operators, clerical workers, aJ1d proof operators whogenerally record and process customer traJ1sactions. Based on the racial disparities inthe criminal justice system recognized in the EEOCs guidallce, Africall AmericallS aJ1dLatinos were disproportionately denied employment for these largely clerical positionswith Bal1k of America because of the blaJ1ket requirement that applicaJ1ts recordsinclude "no felonies or misdemeanors" of aJ1y kind, gravity or age. Moreover, thechilling effect of such aJ1 unlawful posting is enormous, aJ1d discouraged otherwisequalified applicants Witil prior felony or misdemeanor convictions, aJ1d possibly arrestsonly, from applying. Reasons To Issue A Commissioners ChargeAs you know, the EEOC has recognized for decades that because "nationally, BlacksaJ1d Hispallics are convicted in numbers which aIe disproportionate to Whites ...baiTing people from employment based on their conviction records will thereforedisproportionately exclude those groupS.,,2 ill its most recent statement on this issue,the EEOC further recognized that "since tile use of alTest records as aJ1 absolute bar toemployment has a disparate impact on some protected groups, such records aloneCaJU10t be used to routinely exclude persons fiom employment.,,3 Thus, the EEOCrequires employers to have a "business necessity" for excluding workers due to theircriminal records, and has held that "all absolute bar to employment based on the merefact that an individual has a conviction [or arrest] record is unlawful under Title VII.,,42 EEOC "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under TitleVII of the Civil Rights Act of 1964" (citing EEOC "Policy Statement on the Issue of Conviction RecordsUnder Title VII of the Civil Rights Act of J964").3 Id4 EEOC "Policy Statement on the Issue of Conviction Records Under Title VII ofthe Civil Rights Act of1964."
  3. 3. Commissioners Charge Request June 9, 2009 Page Three Unfortunately, despite the EEOCs guidance barring absolute exclusion from employment based on any arrest and conviction history, far too many employers, staffing agencies, and workforce development organizations are unaware of or fail to comply with this guidance. As evidenced by the job announcement in this situation, one of the nations largest banks (Bank of America), one of the worlds largest staffing agencies (Manpower), and a state office charged with helping individuals obtain employment (One-Stop Career Center) conspicuously failed to comply with the EEOCs guidance regulating criminal background checks for employment. We recognize that the Federal Deposit Insurance Act (FDIA) disqualifies individuals s with some criminal convictions from working in banking institutions. However, the_ _ _ _ _ _ _F[J,ederaLnep1JsitJnsuranc_e_COJ:pOl"ation-CFJ)lCJ-LeJllri~Ji1tns are~ot nearly as sweeping _ as those imposed by respondents job announcement, which appears to prohibit the 6 hiring of anyone with any felony or misdemeanor arrest or conviction. Respondents went far beyond the limitations otherwise envisioned under the federal law that was crafted to specifically address the needs of the banking industry by excluding applicants regardless of when the offense occuned, the nature of the offense, and whether it fell within any FDIC restrictions. We believe that this across-the-board exclusion of any individual with felony or misdemeanor conviction or arrest history not only violates Title VII, but unfortunately exemplifies the illegal hiring policies utilized increasingly by many large and small employers and staffing agencies. Given both the significant increase in arrest and incarceration rates since the EEOC issued its conviction guidance in the mid-1980s and employers growing reliance on arrest and conviction records to screen applicants for employment, the unlawful denial of employment opportunities will only multiply absent COlrnnission intervention to end these acts and ensure that employers comply with the agencys guidance. When some of the nations largest employers with the most sophisticated human resources departments engage in such blatantly discriminatory practices, it perpetrates the widely-held belief that it is perfectly legal to exclude individuals with criminal records from any hiring consideration. 5 12 U.S.C. § 1829. 6 The FDIC rules pertain only to convictions (not arrests), and apply only to some types of crimes. Specifically, the FDlAs disqualifications are for any "criminal offense involving dishonesty or a breach oftrust, or money laundering ...." 12 U.S.C. § 1829(a)(J). Moreover, in some instances, the disqualifications can be lifted with written approval of the FDIC upon a showing that the individual is "fit to participate in the conduct ofthe affairs of an insured institution without posing a risk to its safety and soundness or impairing public confidence in that institution." FDIC Statement of Policy for Section 19 of the FDI Act, 63 Fed. Reg. 66185 (Dec. I, 1998), available at In addition, certain "de minimus" misdemeanor offenses are exempt altogether. Id. at 66184.
  4. 4. Commissioners Charge RequestJune 9, 2009Page FourTherefore, we respectfully ask that you file a Commissioners Charge againstrespondents Bank of America, Manpower, and the Alameda One-Stop Career Center,and that the COlmuission conduct a full investigation, and, if appropriate, issue acause finding. We further urge the Commission to seek the full relief available underTitle VII, including injunctive relief requiring these entities to cease their illegalpractices and adopt criminal record screening policies that comply with the EEOCsguidance, as well as monetary relief for any persons deprived of employmentoppOltunities because of the unlawful screening and hiring practices.Very truly yours,All of Us or NoneAmerican Federation of Labor-Congress ofIndustrial Organizations (AFL-CIO)A New Way of Life Reentry ProjectCommunity Legal Services of PhiladelphiaEast Bay Community Law CenterGolden Gate University Law School Womens Employment Rights ClinicImpact FundLeadership Conference for Civil Rights Employment Task ForceLegal Action CenterLegal MomentumLegal Services for Prisoners with ChildrenNational Employment Law ProjectNational Employment Lawyers AssociationNational H.I.R.E. NetworkNational Partnership for Women and Families
  5. 5. Exhibit A
  6. 6. Manpower is Hiring Wednesday April 1st, 2009 11am Are you looking for a fun job in Hayward, CA?Manpower offer’s a great seasonal opportunity @ Bank of America LocBox Project! Over 600 people are needed to fill: ¨ Data Entry Operator positions ¨ Proof Operators ¨ General Clerical Qualified candidates must be able to pass: ¨ Background Check (no felonies or misdemeanors) ¨ Reference Check ¨ FBI Fingerprint Search ALAMEDA ONE STOP CAREER CENTER College of Alameda Portable P (West Campus Dr.) 555 Ralph Appezzato Memorial Parkway Alameda, CA 94501