U.S. Census

Over the last year or so, I've been seeing a steady flow of clients who are denied employment from the U.S. Census Bureau due to their criminal record. There's precious little I can help them with. (Judging by the widespread complaint among attorneys on various reentry listservs, I'm not alone in feeling frustrated by the Bureau's wall of silence.) Nowhere in their communication to the applicants does it show what criteria they're using to disqualify people, whether there's an appeal process to show rehabilitation or lack of nexus between the job and the conviction, or even what the disqualifying offense/arrest is! And all of this, based solely on the FBI background check, known to have over 50% error rate (e.g. mismatched names, records with no disposition, etc.)

Today's NY Times ran an editorial about this very issue (aptly-titled "We can't tell you why") reporting on a class action filed against the Bureau by the lead counsel, Outten & Golden, along with a group of community orgs, which alleges that the Bureau's actions violate Title VII of the 1964 Civil Rights Act. The NY Times editorial explains the concept of Title VII well enough.

The class action complaint alleges that, according to the Bureau's director, Robert Groves, its "concealed policy" is in fact to disqualify people with a prior conviction or pending charge for:

(1) Certain categories of crime, such as murder, sex offenses, robbery, voter fraud, or other crimes that suggest a threat to safety or the integrity of census data, or

(2) Crimes of dishonesty, burglary, theft, or vandalism

Except when the person conclusively demonstrates that he or she does not present a current threat.

Now, I first learned about this "policy" about a month ago from a listserv posting of an attorney who had corresponded successfully (unlike me and many other attorneys who ran into a bureaucratic goose-chase and gave up) with the Bureau. And I just laughed with disbelief. Like I said before, the Bureau does not make this information available to anyone or even hints at its existence in the dismissive termination letters sent to affected applicants. I have a lot of problem with this so-called "policy" itself, but actually following it would be an huge improvement over the present situation.

Anyway, upon learning of this "hidden" policy, I've been advising my clients to act as if it is in fact followed. I'm arguing nexus and negation in all my letters to the Bureau on behalf of my clients. And I'm asking for a hearing or some way to make the case that my clients do not pose any threat to "safety or the integrity of census data." So far, no luck. This is tilling at the windmills par excellence. FYI, this is what President Obama said about reentry and employment while campaigning for presidency.

America is facing an incarceration and post-incarceration crisis in urban communities. Today, nearly 2 million children have a parent in a correctional facility. In the U.S. Senate, Obama has worked to provide job training, substance abuse and mental health counseling, and employment opportunities to ex-offenders. In addition to signing these important programs into law, Barack Obama and Joe Biden will create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership to create ties with employers and third-party agencies that provide training and support services to ex-offenders, and to improve ex-offender employment and job retention rates. Obama and Biden will also work to reform correctional systems to break down barriers for ex-offenders to find employment.

I don't know how he's gonna do all that, if his administration denies even temporary employment to people with decades-old arrests.

The 3 N's of the reentry law

In an ideal world, we would not consider a person's criminal record for employment purpose unless (1) a particular need exists, such as vulnerable population and/or sensitive information; (2) the criminal record indicates unfitness for the position; and (3) the finding of unfitness is not negated by evidence of rehabilitation. I call these 3 N's: need, nexus, and negation, respectively.

My argument is simple. If no particular need exists to consider a person's criminal record, why should we even ask that the person disclose his record? And, even if such a need exists because of the particular nature of the job, why do we want to know about the person's criminal history if it has nothing to do with the job? Finally, if the person can show that he is fully rehabilitated, why should we allow his past convictions to get in the way of his new life?

Over the past week in New York, Governor Paterson's reform of the Rockerfeller-era drug laws stirred up a fair amount of controversy for its impact on the nexus part of the equation. In short, the reform allows a judge to seal certain drug-related convictions and prevent an employer from even learning about them--no nexus, no check.

A recent op-ed piece in Daily News strongly criticized this aspect of Governor Paterson's reform, rhetorically asking:

How would you like a four-time convicted drug dealer to care for your grandmother in a nursing home?

Or an extortionist to handle your savings at the bank?

Or a burglar to teach your kids in school?

Or a car thief to watch your baby in day care?

You will notice that these scenarios all invoke the need factor--vulnerable populations such as the elderly and children, and sensitive information such as financial records. But you will also notice that these examples all lack the nexus factor.

What does drug dealing have to do with caring for the elderly in a nursing home? What does extortion have to with working at a bank? What does burglary have to do with teaching kids? And what does theft of automobile have to do with child care?

Nothing.

Unless you think that people with criminal records, no matter what their records, are likely to prey on the vulnerable population, whenever an opportunity for exploitation presents itself. But this is irrational fear, isn't it?