Updated EEOC guidelines on applicants with criminal records

Fifteen years ago, Capreece Lackey, 42, had steady work that she never put on her resumé.

In fact, it landed her in jail, when she was arrested for prostitution next to a rusty railroad bridge in North Philadelphia.

"I had no soul," said Lackey, who was convicted on the prostitution charge, as well as a lesser charge of obstruction of traffic. "I didn't care what I did. I was addicted to crack cocaine."

Lackey has been sober since 1999, but because of her criminal record, she's still paying the price in unemployment and poverty.

"I get jobs, but when they find out, they let me go," she said. "They look at you like you committed the crime then and there."

Lackey wants people to know her story, which is why she agreed to tell it Wednesday, the day the U.S. Equal Employment Opportunity Commission (EEOC) released new guidelines on how employers should handle applicants like her.

"I want someone to reach out to me," she said.

Her ambitions are modest: maybe a job cleaning office buildings. Her Northeast Philadelphia rowhouse, where she raises her deceased sister's two teenage daughters, is immaculate. Even the corners where the baseboards meet are spotless.

The EEOC, which enforces the part of the Civil Rights Act of 1964 that prohibits racial discrimination on the job, comes to this issue indirectly. A company may have what appears to be a neutral policy - for example, a ban on hiring anyone with a felony conviction. But because a disproportionate amount of people with felony convictions are minorities, the neutral policy actually becomes discriminatory.

"Assuming that current incarceration rates remain unchanged, about 1 in 17 white men are expected to serve time in prison during their lifetime," the EEOC guidelines note. "By contrast, this rate climbs to 1 in 6 for Hispanic men, and to 1 in 3 for African American men."

The new 52-page EEOC guidelines, while detailed and full of examples, make the same basic point as the two-page guidelines released in 1987, when U.S. Supreme Court Justice Clarence Thomas headed the agency.

As it did then, the EEOC asks employers to evaluate their hiring policies to make sure they are consistent with "business necessity."

Three factors matter: Employers must evaluate the nature of the crime, the time passed since the offense or sentence completion, and the nature of the job.

"A policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct" would be inconsistent with that evaluation, the commission wrote.

What's new is that the EEOC wants employers to give screened-out job applicants a chance to explain. Background checks sometimes yield out-of-date information, such as criminal records since expunged through special programs for offenders, or attribute to a job applicant the record of someone with the same name.

The provision - suggested, but not required - could pose a logistical problem for employers, especially to those that hire for high-turnover jobs.

"That's where the rubber will meet the road," said former EEOC Commissioner Leslie E. Silverman, now a partner at the law firm Proskauer Rose L.L.P.

Another worrisome aspect for employers is a section that seems to indicate that a company following local or state laws may still be liable under federal law.

"There's a lot of balancing that has to be done," Silverman said from her office in Washington.

Advocates for unemployed workers are cheered by the guidelines.

"Representing many hundreds of workers with a criminal record over the years who have turned their lives around, it's clear that the EEOC action will go a long way to bring fairness to the criminal-background-check process," said Sharon Dietrich, a managing attorney with Community Legal Services of Philadelphia, who is Lackey's lawyer.

Lackey, who is hanging her hopes on a pardon or an expunging of her record, doesn't see how she poses any risk to anyone, or even how her specific crime relates to the short-term jobs she has had in retail, manufacturing, and cleaning.

After all, she said, that life is over: "The only person I hurt was myself."