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Johnathan Smith op-ed in Houston Chronicle: "Past criminal history should not limit job opportunities"

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Friday, November 15, 2013

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On the heels of Target's recent decision to "ban the box" and thus eliminate the question on employment applications that asks job seekers whether they have a criminal record, Johnathan Smith, Assistant Counsel of the Economic Justice Practice Group at LDF, published an op-ed in the Houston Chronicle that chastises Texas Attorney General Abbot's lawsuit  against the Equal Employment Opportunity Commission's efforts to ensure that good workers are not unfairly denied jobs for minor or old transgressions.

Last week, Texas Attorney General Greg Abbott issued a shot across the bow of the Equal Employment Opportunity Commission's efforts to ensure that good workers are not unfairly denied jobs for minor or old transgressions.

Abbott's office filed a lawsuit against the federal agency, challenging the legality of guidance it issued last year on how employers can use criminal history information without unlawfully and unjustifiably screening out qualified workers. In the lawsuit, Abbott claims that the commission has no authority to interfere with Texas' "sovereign right" to categorically ban "the hiring of criminals." This lawsuit, however, is baseless and threatens to unfairly deprive thousands of Texans from gainful employment.

The number of Americans with criminal records has risen exponentially over the last few decades.

According to one recent study, more than 65 million Americans - or approximately 25 percent of the population - has been either arrested or convicted of a crime, the vast majority for non-violent drug offenses. Texas has one of the highest incarceration rates in the country. At the same time, more employers are using criminal background checks that automatically exclude many - and sometimes all - people who have criminal records. As a result, a criminal record has become a scarlet letter in the job market. Racial minorities, who largely due to discrimination in the criminal justice system are disproportionately more likely to have a criminal record, have been especially hard hit in their quest to find employment.

The Equal Employment Opportunity Commission guidance helps employers craft sensible criminal records policies. The guidance does not bar consideration of an applicant's criminal background nor does it require employers to hire someone with a criminal record. Rather, the commission offers factors employers should consider when evaluating applicants' criminal history. For example, the commission suggests employers should consider the nature of the crime, the time elapsed since conviction, and the responsibilities of the position at issue when assessing whether applicants' criminal conduct should disqualify them. The goal of the guidance is to distinguish employer policies that reasonably consider an applicant's criminal history from policies that unjustifiably consider stale, inaccurate, or irrelevant information that make it harder for jobseekers to find work.

In a press release Attorney General Abbott stated: "Once again, the Obama administration is overreaching its legal authority by trying to impose hiring rules on states that violate state sovereignty and - in this instance - endanger public safety." Yet, his attempt to paint the commission guidance as an "overreach" by President Obama is unfounded. The commission was merely updating guidance first issued in 1987, when Clarence Thomas headed the agency.

Abbott's assertion that the commission's guidance "endangers public safety" is alarmist and wrong-footed. Employers across the country have begun abandoning criminal records policies that unnecessarily eliminate qualified eager workers from the applicant pool. Just last month, nationwide retailer Target announced that it was removing questions about criminal history from its job applications. A rapidly growing number of states, ranging from Rhode Island to California, have adopted similar policies. This trend makes clear that sensible criminal records policies do not jeopardize public safety. It is in everyone's interest to ensure that qualified workers are not being needlessly turned away from employment.

Instead of trying to score cheap political points, Abbott should be working with the commission to make sure that Texas employers have policies that are both fair and lawful, and give people with criminal records the second chance they deserve.