Testify: US Commission on Civil Rights Tackles Employment Discrimination

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The federal government is not done developing the law around discrimination against people with criminal records, particularly as the Disparate Impact on people of Color has been rampant.  They are accepting testimony until January 21st.  Our friends at National Employment Law Project, Sentencing Project, Brennan Center, and dozens of other organizations are sharing the plight of their allies, clients, members, and themselves.  The Formerly Incarcerated & Convicted People’s Movement welcomes all who share the common purpose of redesigning our concepts of crime and punishment in a way that creates healthy and sustainable communities.

U.S. Commission on Civil Rights
1331 Pennsylvania Ave., NW, Suite 1150
Washington, DC 20425                                                                                Jan. 18, 2012

In re USCCR Report on Employment Discrimination through Criminal Records

Dear Commissioners,

As you are clearly aware, the EEOC has signaled an area of the law where Americans have been systematically discriminated against, resulting in community-wide oppression where criminal convictions are the most prevalent.  I am a formerly incarcerated person who has been working with many people and organizations over the years to stem this systematic erosion of civil rights.  We encourage the EEOC amended guidelines be given full force and effect throughout federal and state governments.

Currently, there is a resistance at the local level to fully appreciate the legal basis of a Disparate Impact claim.  There is doubt and cynicism that the EEOC or the Civil Rights Act trumps people’s “right” to discriminate.  For example, legislators in Louisiana and Rhode Island (where I have been closely involved with legislative reform efforts) are solely focused on business-owners discretion, and not upon satisfying federal guidelines.  It is likely that several high-profile lawsuits could serve to put the business and political communities on notice: “Ban the Box” laws will protect, not hurt, your interests.  One such lawsuit is likely forthcoming in Minnesota, where Target is (ironically) a major beneficiary of prison labor, and yet does not hire those people after release.

The EEOC guidelines are far too new to gauge any genuine effects, however, they are serving as additional footing for advocacy efforts, both in employment and housing reforms.  A forthcoming report by the Formerly Incarcerated & Convicted People’s Movement ties Title VI and VII together under the disparate impact theory.  It is the advocates who have long been pushing legal authorities to recognize this “racism by proxy” happening to our communities.  As the Commission is certainly aware, recent victories in many states and municipalities, have settled on various language that points to the same core elements:

  • Crimes should be rationally related to the job in question;
  • There should be a business necessity to exclude someone;
  • No background check until after an offer of employment.
Online Application

Online Application

Some employers, such as Target have created different standards for different states due to the lack of firm federal law on the matter.  For example, applicants in WA do not list crimes over 10 years old; PA will only consider crimes related to the employment being considered; CA will not look at marijuana convictions over 2 years old.[1]

In New Orleans, the statistics are staggering in support of disparate impact claims.  The Crescent City is the most incarcerated city in the most incarcerated state in the most incarcerated nation in the world. The population is two-thirds African-American, whereas the state of Louisiana is two-thirds White.  The historical racial tensions are both physically violent and politically repressive, leading it to be an important location in several landmark decisions of the Supreme Court.[2]

To illustrate the contrast in how police tactics can alter long-term collateral consequences, consider the criminal behavior of the city’s most White and affluent neighborhood: Uptown, also home of Tulane and Loyola universities.  One poll among students shows that 80% of students believe illegal drug use is noticeable, with nearly half claiming it is “pretty” or “very” noticeable.  Whereas “most” or “many” students take part in the drinking scene, over 90% find underage students have abundant to unlimited access to alcohol.[3]  Meanwhile, about 5000 Black men (or 1 in 14) from New Orleans are serving state prison time, while about 400 White men (or 1 in 141).[4]  Extrapolating the job prospects of those college-age people, Black and White, requires no advanced degree in statistics.

Nearly 2 million children in America have a parent currently incarcerated. Studies reflect that generally half of prisoners have two children, so roughly more than 5000 children in New Orleans have a parent in prison.  Perhaps equally important yet hardly acknowledged is the fact that displaced children of Katrina are now the teenagers and young adults struggling in schools, seeking employment, and filling prison cells.  With many families’ support structures disbanded to all parts of the country, we have learned that FEMA never could replace a grandmother.

Prison systems built on convict-leasing schemes in the 1800s have evolved into vast sources for profit.  In the past two decades, Louisiana’s prison population doubled, costing taxpayers billions, having no impact on crime, and New Orleans leads the nation in homicides.

Target Application

Target Application

  • 1 in 86 adults in LA are incarcerated, nearly double the national average.
  • Louisiana releases 15,000 prisoners per year, who have about a 50% chance of staying out for five years.[5]
  • Among black men from New Orleans:
    • One in 14 is behind bars;

¨     One in seven is either in prison, on parole or on probation.[6]

 Relatively high crime rates fail to explain the state’s No. 1 ranking, year after year, in the percentage of incarcerated residents.  Severe sentencing, including life sentences for a third conviction, has created a massive warehousing of 48,000 people.  The lobbying muscle of the sheriffs, buttressed by a tough-on-crime electorate, keeps these harsh sentencing schemes firmly in place.[7]  The 1 in 7 statistic does not account for the tens of thousands no longer under government supervision but still bearing the mark of a criminal record, being discriminated in housing and employment, and the direct impact that has on their tens of thousands of family members.

Conclusion

This issue is one I have studied as a legal professional, community organizer, and through personal experience.  My transition from minimum wage and sleeping on a stairwell cot has been an exception to the norm, yet I have consistently faced this discrimination.  After prison, I was denied a job on the Sears warehouse due to a crime many years before.  After developing a very strong resume and earning a very competitive LSAT, I received many denials to attend law school (and considerable criticism from a frenzied media and their anonymous bloggers after enrolling).  I was even barred from renting in River Garden, the federally-subsidized housing development that replaced New Orleans’ largest public housing project.

For those of us who actually committed a serious crime, discrimination is much easier to accept.  I am not writing this letter on my own behalf, but for the tens of millions of families needlessly bearing these lifetime punishments, overwhelmingly for the usage or sale of substances that were legal for centuries (and likely to return as such).  Sadly, this “anti-criminal” hatred does not care what the actual criminal activity was, in the same way that Anti-Semitism, by its nature, does not function by picking out the “good” Jews from the “bad.”

If we cannot get the zealous defense of those charged with protecting civil rights, then the communities will continue to labor under preexisting resources.  A high-impact strategy for USCCR and the EEOC both would be to form partnerships with the grassroots organizations mounting reform campaigns, providing

1. Consultation on specific policy language,

2. Letters of support and authority to those legislatures or entities, and

3. Initiate targeted litigation to serve as a deterrent across industries and jurisdictions.

I would be happy to help provide contact information with additional organizations focused on this issue.

Sincerely,

Bruce Reilly

Communications Chair, Formerly Incarcerated & Convicted People’s Movement
Member, Voice of the Ex-Offender (VOTE), New Orleans, LA
Tulane University Law School, JD Candidate, ’14 (NAACP-LDF Earl Warren Scholar)
Member, Direct Action for Rights & Equality (DARE), Providence, RI

[1] See attached screenshots from the online Target application.
[2] Snyder v Louisiana, 552 U.S. 472 (2008) (prosecutor’s peremptory challenge was pretext for racial discrimination); Louisiana v U.S., 380 U.S. 145 (1965) (Cannot exclude Blacks from voting; under 10% of Blacks were registered to vote due to various tactics since the end of Reconstruction); United States v. Hays, 515 U.S. 737 (1995) (revisiting a racial gerrymandering issue in place since before the VRA)., et. al.
[3] College Prowler, http://collegeprowler.com/tulane-university/drug-safety/student-polls/, Tulane received a C- grade for Drug Safety.  There are over 5,000 undergraduate students, 56% of whom are under 21, 9% are African-American and nearly 80% are White.
[4] Chang
[5] Source: Louisiana DOC.   Most experts agree that if someone is out for five years, they have an equal, or lesser, chance of going to prison than the normal population.
[6] At any given time, about 6600 people living in New Orleans are on probation or parole.
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About Bruce Reilly

Bruce Reilly is the Deputy Director of Voice of the Ex-Offender in New Orleans, LA. He is a graduate of Tulane Law School and author of NewJack's Guide to the Big House. Much of his writing can be found on www.Unprison.org.
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