Felony is the New N-Word: Statistical Evidence to Measure a Disparate Impact Claim for the Use of Criminal Records Checks in Employment Decisions
![handle is hein.journals/ucinlr82 and id is 1321 raw text is: FELONY IS THE NEW N-WoRD: STATISTICAL EVIDENCE TO
MEASURE A DISPARATE IMPACT CLAIM FOR THE USE OF
CRIMINAL RECORDS CHECKS IN EMPLOYMENT DECISIONS
Candice S. Thomas*
The 'whites only' signs may be gone, but new signs have gone up-
notices placed in job applications ... informing the general public that
felons' are not wanted here. A criminal record today authorizes
precisely the forms of discrimination we supposedly left behind-
discrimination in employment[.]A
I. INTRODUCTION
For an employer, selecting the best candidate for a position is
becoming more complex. With the growing liabilities that an employer
must avoid, more and more employers are conducting background
checks on job applicants to assess the risks each candidate might pose
for the employer. Current reports show that more than 90% of all
employers always or at least sometimes conduct a background check to
search for an applicant's past convictions.2
While the number of employers conducting background checks is
increasing, so are the statistics regarding the number of Americans with
criminal records, and numerous studies indicate that criminal records
pose a major roadblock to employment.3 In 1991, only 1.8% of the
adult population had served time in prison.4 By 2001, that percentage
had grown to 2.7%. At the end of 2007, the percentage had risen even
more, amounting to 3.2% of adults having some form of contact with the
criminal justice system.6 At that rate, the Department of Justice's
Bureau of Justice Statistics estimates that approximately 6.6% of all
people born in the United States in 2001 will serve time in prison during
* Associate Member, 2013-2014 University of Cincinnati Law Review.
1. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 138 (2010).
2. EEOC Enforcement Guidance 915.002, Enforcement Guidance on the Consideration of
Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq., at 6 (Apr. 25, 2012) [hereinafter EEOC Guidance],
available at http://www.eeoc.gov/laws/guidance/upload/arrest conviction.pdf.
3. Allan G. King & Rod M. Fliegel, Conviction Records and Disparate Impact, 26 ABA
JOURNAL LAB. & EMP. LAW 405, 405 (2011).
4. EEOC Guidance, supra note 2, at 3.
5. Id.
6. Id
1295](ViewImageLocal?handle=hein.journals/ucinlr82&div=51&collection=&method=preview&ext=.png&size=3)
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