Give ex-convicts a ‘fair chance’

Mark Fancher

When employers turn away job applicants solely because they have felony convictions, there may be no conscious plan to discriminate against people of color, but the Equal Employment Opportunity Commission says discrimination happens anyway.

The EEOC says automatic exclusion of job applicants with convictions is impermissible because people of color are overrepresented in the criminal justice system. Consequently, the automatic exclusion of job seekers with convictions has a disparate impact on minorities. That result is inconsistent with the requirements of Title VII of the Civil Rights Act, a law that prohibits employment discrimination.

This is of special significance in Michigan because this state’s general population is 80 percent white, but 56 percent of Michigan’s prison population is classified as “non-white.”

Quicken Loans, one of Detroit’s largest employers, had a policy of total exclusion of all persons with felony convictions until the ACLU of Michigan — which is working with Detroit City Council members to enact a “Fair Chance” ordinance that will give job-seekers with convictions a legitimate chance at employment and other opportunities to become productive members of the community — went to the EEOC with complaints.

The EEOC “found reasonable cause to believe” that violations of anti-discrimination laws occurred. Not long afterward, Quicken Loans entered into a conciliation agreement with EEOC that requires the company to individually assess the criminal backgrounds of applicants to determine whether their convictions should be a bar to employment.

For example, if a job-seeker has a decades-old conviction but has been otherwise law-abiding, it might be improper for an employer to disqualify the applicant solely on the basis of criminal history — particularly if the candidate is qualified for the job.

There are other employers in southeast Michigan that exclude job applicants who have convictions, and the organization is initiating an investigation as part of its “Fair Chance” campaign. Once it is established that an employer automatically bans applicants with criminal records, the EEOC’s rule will be brought to the company’s attention, and voluntary compliance will be sought.

Racial imbalance in prisons results from the following factors, among others:

■People of color are systematically targeted by some police officers for stops, searches and arrest even though it has been demonstrated that in some cases stops and searches of white motorists yield more contraband;

■People of color who are poor often receive inferior legal assistance that causes them to receive felony convictions that land them in prison when others with resources to retain competent counsel negotiate pleas to lesser crimes and get probation;

■There is a documented “school to prison pipeline” that, notwithstanding comparable conduct of students across racial lines, produces racially disproportionate rates of suspensions and expulsions of black students that sometimes result in referrals to law enforcement or arrests on school grounds.

When there is so much about our criminal justice system that is discriminatory and unfair, it is simply wrong for employers to base their hiring decisions only on criminal history without judging the credentials, background and character of the applicants.

Mark Fancher is staff attorney for the ACLU of Michigan’s Racial Justice Project.