Thursday, June 30, 2016

Does banning the box open the door to increased racial stereotyping?

A recent University of Michigan study provides evidence that the movement to "ban the box" -- remove the checkbox on employment applications asking whether an applicant has a criminal record -- may have the downside of increasing the risk of racial stereotyping. The reason is that, absent evidence that an applicant does not have a criminal record, an individual reviewing a job application may make race-based assumptions about who has a criminal record. Thus, racial stereotypes may lead to a presumption that minority job applicants have criminal records unless there is evidence to the contrary. The Michigan study is consistent with a 2006 study published in the Journal of Law & Economics.

Wednesday, June 29, 2016

Rogers v. Pearland Indep. Sch. Dist.:

In Rogers v. Pearland Independent School District, No. 14-41115 (June 28, 2016), the Fifth Circuit held that the plaintiff failed to establish that he was subjected to race discrimination when he was rejected on two separate occasions for hire as a master electrician. While not particularly interesting on its own merits, this case coincidentally involves a criminal records policy, the topic of yesterday's post, and one within the same state that has sued the EEOC, no less.

In Rogers, the defendant contended that it refused to hire the plaintiff on the first occasion because he had failed to disclose his felony convictions, which the defendant discovered through a background check. On the second occasion, the plaintiff disclosed his convictions, but the defendant again rejected him, this time for having failed to disclose his convictions the first go-around and also for the serious nature of the convictions themselves. 

The plaintiff alleged that the defendant's policy of "excluding from consideration for employment all persons who have been convicted of a felony" had an unlawful disparate impact. However, the court concluded, based on the record, that the defendant's policy did not automatically exclude applicants with felony convictions. Indeed, the defendant had recently hired several employees with felony and misdemeanor convictions. 

The court also rejected the plaintiff's disparate treatment claim on the grounds that he had not identified a similarly situated comparator. The court rejected the plaintiff's attempt to compare himself to a white male who was hired even though he had failed to disclose a felony conviction. The court concluded that the white male was not similarly situated because the defendant's criminal records policy did not automatically bar all felons, and instead took account of the seriousness of an applicant's convictions. The white male's offenses were less serious than the plaintiff's, so the plaintiff could not compare himself to the white male to establish a prima facie case.

The dissent disagreed with the majority's analysis of the plaintiff's disparate treatment claim, reasoning that the white male was an appropriate comparator since the plaintiff was rejected for failing to disclose his criminal record, not the criminal record itself.

Here, I think the dissent has the better argument, at least with respect to the first rejection. If the plaintiff was allegedly rejected for lying about having a felony conviction, then evidence that a white male was hired, even though he had lied about a felony record, would tend to discredit the employer's asserted reason. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.

Tuesday, June 28, 2016

EEOC's Criminal Records Guidance: Texas v. EEOC & Guerrero v. Cal. Dep't of Corr. (Updated 10/5/16)

On June 27, 2016, the Fifth Circuit reversed the district court's dismissal of the State of Texas's complaint seeking a declaration that the EEOC's Enforcement Guidance on Arrest and Conviction Records violates the Administrative Procedure Act.

Compared with some other federal agencies, like the EPA and the NLRB, the EEOC has rather limited rulemaking authority. The EEOC cannot issue legislative rules under Title VII, so the arrest/conviction guidance does not purport to bind anyone except EEOC staff in carrying out their official duties. This is the most direct way in which the guidance affects employers, as it provides the legal standards under which the EEOC investigates and litigates charges involving potentially discriminatory arrest and conviction policies. Indeed, the EEOC is not even authorized to sue government employers -- that authority lies with the Department of Justice -- so Texas may have a weaker claim, in some respects, than a private employer, which can be sued by the EEOC.

Monday, June 27, 2016

Fisher v. University of Texas & Employer Affirmative Action

The Supreme Court's decision in Fisher v. University of Texas, No. 14-981, likely has quite limited application to affirmative action policies in the employment context. In Fisher, the Court upheld the University's use of race-based affirmative action to promote student body diversity. The Court has long recognized -- since at least the 1977 Bakke decision -- that student body diversity is a constitutionally permissible goal for an institution of higher education. The protection of this goal is grounded in the right to academic freedom under the First Amendment and is entitled to substantial deference. 

In the employment context, by contrast, whether under Title VII of the Civil Rights Act of 1964 or under the U.S. Constitution, it seems doubtful that an employer will be able to justify racial discrimination as a means to promote diversity for its own sake.  

Wednesday, June 15, 2016

Why Title VII May Not Apply to Most English-Only Rules

The application of Title VII of the Civil Rights Act of 1964 to workplace English-only rules continues to generate widespread disagreement, both inside and outside the courts. In this post, I discuss an issue that has been overlooked in evaluating English-only rules -- one that, if addressed, may well lead most courts to conclude that Title VII does not apply to the run-of-the-mill English-only rule.