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Supporting Elimination of the Use of Criminal Background Checks to Systematically Exclude Individuals with Criminal Records from Employment Opportunities

WHEREAS, the National Association for the Advancement of Colored People (NAACP) reaffirms its support of the elimination of the use of criminal background checks in the employment hiring process at the state and federal level, because criminal background checks are a mechanism to deter Black employment and exclude job applicants with criminal records regardless of their job qualifications; and

WHEREAS, the portion of the population with criminal records has increased to over 1 in 3 adults; particularly, 1 in 3 Black men and 1 in 18 Black women are more likely than a White man or woman to be incarcerated at least once in their lifetime and thus, have a criminal record; and

WHEREAS, a 2012 study reflected that 87% of U.S. employers conduct at least one form of a criminal background check on prospective job applicants that influences the employer's hiring decisions; and

WHEREAS, "the majority of employers indicate that they would "probably" or "definitely" not be willing to hire an applicant with a criminal record," which is demonstrated in that a criminal record reduces the likelihood of a job callback or offer by 50% because employers fear that a criminal record, whether there is a conviction or not, is indicative of future behavior; and

WHEREAS, although employers assert that the use of criminal background checks is to protect the safety of their employees and customers, protect the company's reputation, or to comply with laws or regulations, the exclusion of individuals with criminal records increases recidivism and decreases public safety; and

WHEREAS, the widespread use of criminal backgrounds checks that predominantly bars Black individuals from applying for and obtaining a job also negatively affects the economy and costs America between $78 to $87 billion each year; and

WHEREAS, the generalized use of criminal background checks to exclude individuals with criminal records from even applying to jobs also violates Title Vll of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, gender, religion, sex or national origin; and

WHEREAS, the objective of Title VII is to achieve equality of employment opportunities, and it requires the removal of "artificial, arbitrary, and unnecessary barriers to employment when those barriers operate to discriminate on the basis of race or another impermissible classification;" and

WHEREAS, per the Equal Employment Opportunity Commission (EEOC) 2012 Enforcement Guidance, an employer violates Title Vll when the employer's neutral policy or practice - such as excluding individuals with criminal records - has the effect of disproportionately screening out a protected group - Black job applicants - and the employer fails to demonstrate that the policy or practice is job-related; and

WHEREAS, the EEOC acknowledged that data, which shows that Black men had an imprisonment rate that was 7 times higher than white men, supported a finding that criminal record exclusions have a disparate impact based on race, and that Black individuals are disproportionately negatively impacted by such hiring policies; and

WHEREAS, the EEOC also stated that an absolute bar to employment based on an applicant's criminal record is a violation of Title VIl; however, an employer is still allowed to consider the applicant's record in making its hiring decision if the employer performs an individualized assessment; and

WHEREAS, in spite of the EEOC guidance, employers are reluctant to engage in an individualized assessment of an applicant's history or discuss the criminal record with the applicant and this is particularly harmful to Black job applicants; and

WHEREAS, the exclusion of people with criminal records from job opportunities thus severely impacts Black communities; and

WHEREAS, to remedy the effect of criminal background checks on Black communities, 36 States and over 150 cities and counties have implemented "Ban the Box" policies that remove conviction and arrest history questions from job applications and delay criminal background checks until later in the hiring process; and

WHEREAS, the Ban the Box policy allows individuals to display their qualifications before discussing their criminal history, and a 2018 study found that for individuals with criminal records, Ban the Box policies increase the odds of getting a public sector job by 30% and do not encourage racial stereotyping of young Black men.

THEREFORE, BE IT FINALLY RESOLVED, that the NAACP reaffirms its existing policy in supporting the adoption and implementation of Ban the Box policies nationwide at the federal, state, city and county level in order to increase job prospects in the public and private sector among Black individuals with criminal records.