Earlier this month, Maurice Emsellem, Policy Co-Director for the National Employment Law Project (NELP), sat down with Root & Rebound at his downtown Oakland office to talk about the employment issues that arise for people coming out of prison and jail.
At NELP, Maurice specializes in employment law as it affects people with criminal records. Maurice has worked on collaborations with organizers and advocates that have successfully modernized state unemployment insurance programs, created employment protections for workfare workers, and reduced unfair barriers to employment of people with criminal records in state laws and in city hiring practices. He has testified before Congress and numerous state legislatures, promoting innovative policy reforms.
We were lucky to sit down with Maurice and learn about some key areas in employment law that affect people with criminal records. In this blog post, we wanted to share information with you about how one major federal civil rights law—Title VII—can be used to help people with criminal records who are discriminated against in the employment sphere because of their record.
- First, some basic info: Title VII is a federal civil rights law that says it is illegal for employers with 15 or more employees (20 employees for age-discrimination cases) to discriminate against any individual in recruiting, hiring and promotion decisions, transfers, work assignments, performance measurements, the work environment, job training, discipline and firing, wages and benefits, or any other condition or privilege of employment.
- Second important thing to know: Title VII only protects people from discrimination that is based on their membership in what the Supreme Court has defined as a “protected class.” Race, ethnicity, religion, sex (including pregnancy), national origin, age (40 or older), and disability are all protected classes under Title VII. Thus, an employer cannot discriminate on these specific bases; but Title VII does not cover groups outside of legally recognized protected classes.
- Third, Title VII not only prohibits intentional discrimination against protected classes, but also prohibits employers from having job practices and policies that cause a disparate impact on the basis of membership in a protected class, such as race, color, religion, sex, or national origin. This law is helpful for advocates because, in many cases, it is very hard to prove that an employer intentionally discriminated against a person because of his/ her membership in a protected class; on the other hand, it is easier (though not easy!) to show that, despite an employer’s intention, the workplace policy has a “disparate impact”—that is, it disproportionately harms—a protected class. If a plaintiff shows that a practice has a disparate impact on the basis of sex, race, national origin, or other protected classes, the employer must then show that the job practice is job-related for the position in question and consistent with the needs of the business for the practice to be deemed lawful by a court.
Administrative Guidance on Title VII
- The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII—The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title VII and federal laws that make it illegal to discriminate against a job applicant or an employee. The EEOC issues compliance guidelines to help employers, courts, and advocates understand and implement Title VII. Importantly for whistleblowers, it is illegal for an employer to retaliate—to discriminate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
- The EEOC has issued enforcement guidance stating that an “employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.” You can find the EEOC guidance rules online here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
- In California, the Employment Development Department (EDD) has also issued Directives related to state and federal employment discrimination laws, including Directives issued to employers who receive federal financial assistance to help them comply with Title VII and their nondiscrimination obligations when serving individuals with criminal records. You can find the EDD’s Directives online here: http://www.edd.ca.gov/jobs_and_training/pubs/wsd12-9.pdf.
So why is Title VII relevant to our work and important for people with criminal records?
Here’s why: In a society that has a racially discriminatory criminal justice system, an overwhelming number of formerly incarcerated people are African American, Latino, and other people of color. So Title VII’s protections for people on the basis of race, color, and national origin also protect people of color coming out of prison and jail and reentering the job market. Title VII is rich with potential for protecting people with criminal records as they attempt to get work, maintain a stable job, or report discrimination on the basis of their membership in a protected class.
The EEOC has encouraged employers to develop individualized assessments of people with arrest or conviction records in the hiring process, so that they do not violate Title VII. The EEOC guidelines state that, to abide by Title VII, an employer must, at the very least, consider the following four factors in the hiring process: (1) the nature of the applicant’s crime, (2) the time elapsed since the crime, (3) the nature of the job, as well as (4) rehabilitative factors that show a person is ready for work.
Employment laws can and should be leveraged to make reentry as successful as possible, and to fight discrimination against people who have served their time and want to be productive members of our workforce. We hope to see the protections of Title VII enforced and expanded on behalf of people exiting prison and jail—people who are attempting to provide for themselves and their families and enjoy the dignity of a stable job free of discrimination.
Thank you, Maurice, for your expertise and time!
–The R & R Team