COMMISSIONER CHARGE Request - National Employment Law Project
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The document is a request to the U.S. Equal Employment Opportunity Commission to issue a Commissioner's Charge against Bank of America, Manpower, and a One-Stop Career Center for violating Title VII of the Civil Rights Act. It argues that an absolute bar on hiring individuals with any criminal history has an unjustified disparate impact on minorities. The request seeks an investigation and relief including stopping the illegal screening practices and monetary relief for lost job opportunities.
![Commissioner's Charge Request
June 9, 2009
Page Two
Facts
Respondents widely posted a job announcement for clerical positions at Bank of
America that includes all absolute prohibition on hiring any applicant with a felony or
misdemeanor. A copy of one announcement is attached hereto as Exhibit A. The job
al1l10uncement states: "Qualified candidates must be able to pass: Background Check
(no felonies or misdemeallors) ...." The announcement did not distinguish between
arrests or convictions, alld can certainly be read as applying to both arrests and
convictions.
Respondents distributed the job al1l10uncement throughout the San FraJ1cisco Bay Area
in the first weeks of March 2009. It applies to over 600 positions for three categories of
workers, including data entry operators, clerical workers, aJ1d proof operators who
generally record and process customer traJ1sactions. Based on the racial disparities in
the criminal justice system recognized in the EEOC's guidallce, Africall AmericallS aJ1d
Latinos were disproportionately denied employment for these largely clerical positions
with Bal1k of America because of the blaJ1ket requirement that applicaJ1ts' records
include "no felonies or misdemeanors" of aJ1y kind, gravity or age. Moreover, the
chilling effect of such aJ1 unlawful posting is enormous, aJ1d discouraged otherwise
qualified applicants Witil prior felony or misdemeanor convictions, aJ1d possibly arrests
only, from applying.
Reasons To Issue A Commissioner's Charge
As you know, the EEOC has recognized for decades that because "nationally, Blacks
aJ1d Hispallics are convicted in numbers which aI'e disproportionate to Whites ...
baiTing people from employment based on their conviction records will therefore
disproportionately 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 to
employment has a disparate impact on some protected groups, such records alone
CaJU10t be used to routinely exclude persons fi'om employment.,,3 Thus, the EEOC
requires employers to have a "business necessity" for excluding workers due to their
criminal records, and has held that "all absolute bar to employment based on the mere
fact that an individual has a conviction [or arrest] record is unlawful under Title VII.,,4
2 EEOC "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title
VII of the Civil Rights Act of 1964" (citing EEOC "Policy Statement on the Issue of Conviction Records
Under Title VII of the Civil Rights Act of J964").
3 Id
4 EEOC "Policy Statement on the Issue of Conviction Records Under Title VII ofthe Civil Rights Act of
1964."](https://image.slidesharecdn.com/commissionerchargerequest-nationalemploymentlawproject-120620123845-phpapp02/85/COMMISSIONER-CHARGE-Request-National-Employment-Law-Project-2-320.jpg)
COMMISSIONER CHARGE Request - National Employment Law Project
- 1. HElP Delivering Economic Opportunity National Employment Law Project Christine L. Owens Executive Director June 9, 2009 o National Office Acting Chairnlan Stuart 1. Ishimaru 75 Malden Lane, Suite 601 New York, NY 10036 U.S, Equal Employment Opportunity Commission (212) 285~025 tel 131 M Street, NE (212) 285-3044 fax [email protected] Washington, DC 20507 AIII'W.nelp.org o Washington, DC Office Dear Chairman Ishimaru: 1333 HStreet, NW Suite 300, East Tower Washington, 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 COimnissioner's Charge against Bank of America, o California Office Manpower, and the Alameda, California One-Stop Career Center 40514" Street, Suile 1400 Oakland, 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 Commissioner's (510) 663-2028 fax Charge will pelmit the Equal Employment Opportunity Commission o Midwest Office ("EEOC") to detennine whether respondents' use of an absolute bar 900 Victors Way, Suite 350 AnnArbor,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 203 Olympia, 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 African Board of Directors Americans and Latinos of employment opportunities for which they Belli SI1Ulffitm,Ghair aTe otherwise qualified, Because of their disparate impact, hiring Author and Consultant restrictions based on aITest or conviction records are only permissible Elaise L. Fox UFCW Local 1657 when justified by business necessity, a standard that simply cannot be James Haughton met for overly-broad exclusiollS that do not take into account tlle Director, Fight Back nature, age and job-relatedness of the offense. Issuance of a Jonathan Hiatt, Commissioner's Charge will pennit an investigation illto whether one General Counsel, AFL-CIO of the nation's 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 http://eeoc.gov/poJicy/docs/convicI1.hlml; 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. Commissioner's Charge Request June 9, 2009 Page Two Facts Respondents widely posted a job announcement for clerical positions at Bank of America that includes all absolute prohibition on hiring any applicant with a felony or misdemeanor. A copy of one announcement is attached hereto as Exhibit A. The job al1l10uncement states: "Qualified candidates must be able to pass: Background Check (no felonies or misdemeallors) ...." The announcement did not distinguish between arrests or convictions, alld can certainly be read as applying to both arrests and convictions. Respondents distributed the job al1l10uncement throughout the San FraJ1cisco Bay Area in the first weeks of March 2009. It applies to over 600 positions for three categories of workers, including data entry operators, clerical workers, aJ1d proof operators who generally record and process customer traJ1sactions. Based on the racial disparities in the criminal justice system recognized in the EEOC's guidallce, Africall AmericallS aJ1d Latinos were disproportionately denied employment for these largely clerical positions with Bal1k of America because of the blaJ1ket requirement that applicaJ1ts' records include "no felonies or misdemeanors" of aJ1y kind, gravity or age. Moreover, the chilling effect of such aJ1 unlawful posting is enormous, aJ1d discouraged otherwise qualified applicants Witil prior felony or misdemeanor convictions, aJ1d possibly arrests only, from applying. Reasons To Issue A Commissioner's Charge As you know, the EEOC has recognized for decades that because "nationally, Blacks aJ1d Hispallics are convicted in numbers which aI'e disproportionate to Whites ... baiTing people from employment based on their conviction records will therefore disproportionately 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 to employment has a disparate impact on some protected groups, such records alone CaJU10t be used to routinely exclude persons fi'om employment.,,3 Thus, the EEOC requires employers to have a "business necessity" for excluding workers due to their criminal records, and has held that "all absolute bar to employment based on the mere fact that an individual has a conviction [or arrest] record is unlawful under Title VII.,,4 2 EEOC "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964" (citing EEOC "Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of J964"). 3 Id 4 EEOC "Policy Statement on the Issue of Conviction Records Under Title VII ofthe Civil Rights Act of 1964."
- 3. Commissioner's Charge Request June 9, 2009 Page Three Unfortunately, despite the EEOC's 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 nation's largest banks (Bank of America), one of the world's largest staffing agencies (Manpower), and a state office charged with helping individuals obtain employment (One-Stop Career Center) conspicuously failed to comply with the EEOC's 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 agency's guidance. When some of the nation's 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 FDlA's 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 http://www.fdic.gov/regulations/laws/rnles/5000-1300.htmJ. In addition, certain "de minimus" misdemeanor offenses are exempt altogether. Id. at 66184.
- 4. Commissioner's Charge Request June 9, 2009 Page Four Therefore, we respectfully ask that you file a Commissioner's Charge against respondents Bank of America, Manpower, and the Alameda One-Stop Career Center, and that the COlmuission conduct a full investigation, and, if appropriate, issue a cause finding. We further urge the Commission to seek the full relief available under Title VII, including injunctive relief requiring these entities to cease their illegal practices and adopt criminal record screening policies that comply with the EEOC's guidance, as well as monetary relief for any persons deprived of employment oppOltunities because of the unlawful screening and hiring practices. Very truly yours, All of Us or None American Federation of Labor-Congress ofIndustrial Organizations (AFL-CIO) A New Way of Life Reentry Project Community Legal Services of Philadelphia East Bay Community Law Center Golden Gate University Law School Women's Employment Rights Clinic Impact Fund Leadership Conference for Civil Rights Employment Task Force Legal Action Center Legal Momentum Legal Services for Prisoners with Children National Employment Law Project National Employment Lawyers Association National H.I.R.E. Network National Partnership for Women and Families
- 5. Exhibit A
- 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