The Journal of Things We Like (Lots)
Select Page

In “Beyond Title VII: Rethinking Race, Ex-offender Status, and Employment Discrimination in the Information Age,” Professor Kimani Paul-Emile sets forth a compelling analysis of the harm and prejudice engendered toward minority populations by employers’ use of criminal background inquiries. She then proposes a novel regulatory scheme whereby employers would evaluate job applicants for employment fitness prior to factoring in any type of criminal background.

Whether or not one ultimately comes down on the side of regulating employer criminal background inquiries and subsequent actions taken on the basis of those inquiries, there is undeniable appeal in at least considering this scheme, which Professor Paul-Emile calls the Health Law Framework. Her framework is interesting because it transcends the traditional realm of regulation in this area—Title VII and the Fair Credit Reporting Act (FCRA)—and borrows from the arena of health law, specifically the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), to forge a thoughtful, integrated proposed mechanism for regulating employer use of criminal background inquiries.

A comprehensive history and status of the regulation of employers’ use of criminal background inquiries provides the perfect launching pad for the article’s proposal. The article also does an excellent job of setting forth how and why there came to be so many inaccuracies in criminal history reports, as well as the ramifications of these inaccuracies. It also provides an illuminating discussion of the stigmatization attendant to having a criminal background of virtually any kind, and why this stigmatization engenders discrimination. Noting that more than 25% of Americans have a criminal record, Professor Paul-Emile shines a light on what she refers to as “[a] rapidly expanding for-profit industry [that] collects these records and compiles them into electronic databases, creating ready access to millions of computerized criminal history records” for the nearly 92% of employers who decide to access the criminal histories of job applicants. And yet, as she points out, when an employer filters applicants based on their criminal histories—using an applicant’s criminal background as a proxy for her fitness for a position, rather than her skill sets and work experience—not only do applicants lose out on opportunities that they may deserve, but employers can lose out on the chance to hire the best applicants.

Moreover, the discriminatory disparate impact and invidious stigmatization that criminal background screenings by employers can engender has not gone unnoticed—even by the EEOC. Professor Paul-Emile’s approach to this much-discussed problem is not only fresh and novel, it is thoughtful. She starts by both exhorting and applauding the EEOC’s attempts to grapple with the harm that criminal record employment inquiries can confer on minority populations, while simultaneously remaining critical of the agency’s not having done enough. After critiquing the law’s reliance on the FRCA and Title VII to address the discrimination that ensues from employers’ use of criminal background inquiries in hiring, Professor Paul-Emile commences her discussion of the two laws that form the basis of her Health Law Framework: GINA and the ADA.

Professor Paul-Emile’s proposed framework takes into account not only the welfare of job applicants with criminal records, but also that of employers with misgivings about hiring those with criminal records, and the general public. The general public, of course, has overriding interests that Professor Paul-Emile seeks to address, like workplace danger and the misclassification of applicants without a criminal record. What Professor Paul-Emile proposes is to combine the ADA’s core principles of reasonable accommodation, risk management, and the avoidance of stigmatization with GINA’s emphasis on, as she puts it, “regulating the flow of information regarding an invisible yet stigmatized status that can form the basis of discriminatory treatment.” Her proposal, she notes, guards the job-related welfare of people of color, affords employers the ability to retain the prerogative of hiring based on traditional criteria without, as she again puts it, “engaging in invidious discrimination, or contributing to the establishment of an enduring underclass of individuals with criminal records.”

Probably the most incisive and salient point the author makes in the article is the one she makes when she explains why the ADA and GINA (the health law statutes) may be more effective to grapple with the issue she is addressing than the traditionally-used FCRA and Title VII. The health law statutes, Professor Paul-Emile explains, are distinct from the FCRA and Title VII in that: 1) they attempt to capture discrimination that is “based on a trait or condition that, like the existence of a criminal record, may not be readily apparent . . . , but which carries a powerful social stigma,” 2) they cover disabling conditions, which, unlike Title VII’s protected class statuses, may, in fact, be a rational basis upon which to exclude someone from employment, much like an applicant’s criminal background; and 3) they have what Professor Paul Emile terms “established doctrinal schemes regulating the flow of information” upon which an employer may base discrimination while simultaneously affording a fair chance to all applicants. Her incorporation of the ADA’s “reasonable accommodation” mandate into the framework is really interesting, and serves her stated goal of ensuring access to employment for those who truly need it. Her framework is well thought out, and the way in which she assesses its benefits and even anticipates probable challenges and criticism is excellent.

Truthfully, I think the issue of criminal background checks in employment is one that is complex and not easily resolved. However, irrespective of where one comes out on the issue, it is refreshing to see someone approach such a much-discussed topic with an original, concrete solution that 1) spurs thought and discourse; 2) compels a close examination of the policy arguments, incentives, and deterrents at play; and 3) tries to factor in the interests of all involved, as well as that of society. Scholarship is supposed to make us think and reconsider our initial positions on issues, and this piece does just that. That is why it is “liked lots.”

Download PDF
Cite as: Kerri Lynn Stone, Reaching Outside the Box to Ensure Equal Opportunity, JOTWELL (April 8, 2015) (reviewing Kimani Paul-Emile, Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination, 100 Va. L. Rev. 893 (2014)), http://worklaw.jotwell.com/reaching-outside-the-box-to-ensure-equal-opportunity/.