Much has been made in the last 2-3 years about the barriers that ex-offenders face in finding employment post incarceration. The “ban-the-box” movement, which is the practice of not asking about an applicant’s criminal history on job application forms, is slowly but steadily gaining traction around the country. So is the awareness of how much Americans spend on keeping offenders locked up—around $56 billion (not million) per year—and that ex-offenders who are unemployed are three times more likely to end up back in jail than ex-offenders who are employed.  

But a recent class-action hiring discrimination case against the U.S. Census Bureau illustrates how much impact, either positive or negative—a mass employer like the Census Bureau can have on those figures. The Bureau settled the case, which was initiated in the wake of the 2010 U.S. Census, out of court for $15 million (not billion). For a class of plaintiffs estimated at 450,000, the settlement works out to $33.33 per plaintiff. However, the settlement also includes certain forms of non-monetary relief for the plaintiffs that should, if carried out per the settlement, be worth a lot more than $33.33 to each plaintiff.

But first, the case itself.

Back in 2009 Precious Daniels of Detroit was arrested for blocking a doorway during a peaceful protest demonstration against Blue Cross/Blue Shield of Michigan. When she went to court for her arraignment the charges against her were dropped and she was never prosecuted. Sometime after that Daniels applied to the U.S. Census Bureau for a long-term temporary job with the 2010 U.S. Census. The agency ran her name through a criminal records database, discovered that she had been arrested, and removed her from consideration for hire.

But how, you may ask as an HR professional, can any employer in this country maintain the practice of refusing to hire an otherwise qualified applicant on the basis of an arrest alone—not a conviction?

The short answer is, you can’t. But there is more to it than that. Consider that,  in a legal sense, “disparate impact”—which was the basis of the class-action suit of which Ms. Daniels eventually became the lead plaintiff—is not real until it is proven to exist, usually statistically, in a court of law. So an employer who practices discrimination by disparate impact certainly runs a risk of being legally called out for it; but if it has deep enough pockets, and an end goal that it feels is justified, it may be willing to run that risk.

The Census Bureau’s end goal was understandable if not legally justified. The government, like any employer, is required to maintain safe operations and take reasonable precautions to protect its customers (i.e., the citizenry) from harm done by any of its employees (i.e., census workers). In an endeavor as massive in scope as the national decennial census, that mandate is more serious and more challenging to meet than it would be for the average employer—even the average large employer.

The lawsuit against the Census Bureau was a standard class-action Title VII suit that accused the Census Bureau of using hiring methods that had disparate impact on black and Latino applicants. According to the suit, the government “required nearly all job applicants who have ever been arrested to produce within 30 days the ‘official court documentation’ for any and all of their arrests regardless of whether a conviction resulted . . . “

The Bureau had about one million jobs to fill for the 2010 census. About 3.8 million people applied for those jobs. According to the plaintiffs’ attorneys, the Bureau’s requirement resulted in roughly 93% of the applicants who were required to produce arrest documentation—including Ms. Daniels—being turned away. This was about 700,000 applicants.

The Census Bureau tried to get the suit dismissed on various technical grounds. But a federal magistrate certified the class of plaintiffs, and the settlement soon followed.

Besides the nearly meaningless financial settlement, there were other elements in the settlement that should be meaningful to potential applicants for the 2020 census. First, the participating plaintiffs can get help correcting mistakes in their criminal history records, or they can get advance notice and information about jobs with the 2020 census. Next, the Bureau will hire two industrial psychologists who will design a hiring selection process “to greatly reduce the number of applicants who are refused employment based on prior interactions with the criminal justice system.”

Put aside for the moment the question of how an agency of the federal government can sidestep compliance requirements the government routinely imposes on private employers. We have seen that before and will see it again. Consider instead the impact a single employer can have, if it is large enough, on one of the great social problems of our day.

Source: The Litigation Daily 4/20/16