Attorney Lester Rosen, founder and CEO of background check firm Employment Screening Resources (ESR), has submitted a letter of public comment to the U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces federal laws prohibiting employment discrimination, regarding the April 25, 2012 meeting where the EEOC voted 4-1 to approve updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The letter is available at: https://www.esrcheck.com/Les-Rosen-Public-Comment-on-EEOC-Criminal-Guidance.php. In the letter, Rosen writes that as a founder and CEO of an accredited Consumer Reporting Agency, the chairperson of the committee that founded the National Association for Professional Background Screeners (NAPBS), and author of the first comprehensive book on background checks, ‘The Safe Hiring Manual,’ he believes he has a unique perspective on issues involved with criminal background checks. Rosen’s background before entering the screening industry also has given him a different perspective: Before entering the background screening industry, I retired from a career as a criminal trial attorney. I spent nearly 20 years practicing criminal law, the majority of time as a defense lawyer, and approximately four years as a deputy District Attorney. For a number of years I was recognized by the State Bar of California as a certified specialist in criminal law. In my capacity as a defense attorney, I have represented a large number of people accused of criminal acts, ranging from misdemeanors such as driving under the influence and petty theft all the way to homicide, serious sexual assaults, child molestation and crimes of violence. My jury trials have also included complex federal drug cases, sex crimes, murder and death penalty cases and a wide variety of other cases associated with a criminal practice. I have had the opportunity to work with numerous offenders and their families very closely and often assisted offenders in gaining employment as part of an effort to present the best case at sentencing. I fully embrace the EEOC objective of ensuring that ex-offenders are not the subject of unfair treatment. In my career, this is not an abstract concept but a goal that involves large numbers of people I have known and worked with personally and closely. America is a country of second chances, and if a person has committed a crime and done the time, he or she needs need a job in order to become a law abiding and a tax-paying citizen. As a society, we cannot afford to build more prisons then schools or hospitals. In fact, I have written a widely distributed article titled ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ which is available at https://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php. However, Rosen writes that he has also seen “the devastating results first hand when the wrong person is put in the wrong job. I have been involved in cases, both as an attorney and an expert witness, where children have been molested, woman subjected to serious sexual assaults in their own homes, and people murdered in their own homes, all because appropriate due diligence was not exercised. I am a firm believer that there should be a job for everyone, but not everyone is entitled to every job.” For those reasons, Rosen believes the recently updated EEOC Enforcement Guidance is “very troubling” and has, in his view, the unintended consequences of hurting ex-offenders and making it harder for millions for employers to provide jobs during this period of economic recovery. He offers reasons why the Commission should withdraw or modify the updated Enforcement Guidance.
- The statistics cited in the EEOC Guidance to show the number of Americans involved in the criminal justice system are overstated and inflated. Rosen writes the difficulty with the figures cited by the EEOC showing a dramatic number of individuals in this country are the subject of the criminal justice system is that they include “probationers.” That means the statistics cited by the EEOC are seriously overstated and include practically all misdemeanor convictions.
- The EEOC Guidance gives ex-offenders the status of a “protected group” similar to groups based on race, religion, or national origin. Rosen writes the EEOC Guidance “appears to have the impact of conferring upon ex-offenders the status of a protected group, similar to protections given on the basis of race, color, religion, sex or national origin” through Title VII of the Civil rights Act. With the very complex procedures outlined by the EEOC for consideration of criminal records, it can be argued that ex-offenders may even have more rights than groups protected by Title VII.
- The recidivism studies cited in the EEOC Guidance are still in the early stage and should not be the basis of social policy. The EEOC cites studies that an ex-offender’s criminal past becomes irrelevant over time. However, Rosen writes that “the studies cited by the EEOC concerning recidivism, although useful and a good place to start, are in the very early stages of research and have not developed to the point where such studies can form the basis of a social policy” since “the science of judging rehabilitation over time is in its infancy.”
- The new EEOC Guidance will create brand new industries of “professional litigants” and advisors on complex new rules. Another concern Rosen voices is that the sheer complexity of the new standards will create brand new industries of “professional litigants” consisting of ex-offenders assisted by plaintiffs lawyers who can simply apply to any possible employer just to try to set up a lawsuit and seek damages, as well as vast new opportunities for lawyers and other “experts” to advise employer’s on how to deal with this complex web of new rules.
- The EEOC Guidance limiting criminal inquiries only to “relevant criminal matters” to a job is nearly impossible for employers to carry out. Another practical issue Rosen notes is “the near impossibility of an employment process that limits criminal inquires to relevant criminal matters as suggested by the EEOC.” While the EEOC suggested some “best practices” such as employers having a policy or limiting inquires or questions about past criminal acts that are relevant to the job in question, the Commission “has not provided any examples of how to carry that out.”
- The EEOC Guidance of employers limiting inquiries can have the unintended consequence of working against ex-offenders trying to get jobs. Rosen writes that “there are a number of real world drawbacks with following the EEOC suggestion of only asking about relevant crimes” and that if employers attempt to limit their inquiries it could have “the unintended consequences in the real world of working against ex-offenders trying to get jobs” since “the applicant is being put into a position of having to make a very complicated legal and factual judgment of what is serious.”
- The EEOC Guidance of limiting inquiries on criminal records means employers cannot make informed decisions if they do not view actual court case files. Rosen writes that it is important to understand that “there is no way for an employer to even make an informed judgment as to the nature and gravity of an offense unless the employer obtains some information from the actual court file.” The bottom line is that a court case must be reviewed first.