Criminal Justice in Employment

Labor and Employment Law Program providing remedy in class action settlement
Labor and Employment Law Program Director Esta R. Bigler ’70
Thursday, April 21, 2016

As part of a landmark class action settlement between the U.S. Department of Commerce and African-American and Latino plaintiffs represented by Outten & Golden LLP, ILR’s Labor and Employment Law Program is slated to begin a $4.9 million contract with the law firm.

The contract is for establishing the Records Assistance Program, which will provide educational support to help African-American and Latino members of the 450,000-person lawsuit understand and correct mistakes in their criminal records.

The litigation included people who suffered discrimination when their applications for more than one million temporary jobs for the 2010 census were screened out by the bureau’s use of often inaccurate and incomplete FBI arrest and convictions database. The census bureau is part of the U.S. Department of Commerce.

Labor and Employment Law Program Director Esta R. Bigler ’70 will lead the Records Assistance Program. Work will include data collection from class members that can provide insight into the effectiveness of interventions called for in the settlement.  

“The hope is that this settlement will help people learn how to resolve discrepancies in their criminal records to enable them to present potential employers with accurate documents and increase employment,” Bigler said.

“The data collected during this project will offer unparalleled research opportunities for developing effective strategies for increasing the employment of citizens returning to the workplace.”

According to Adam Klein ’87, head of the class action practice at Outten & Golden and  lead attorney for the plaintiffs, further burden was placed on applicants to correct the errors with court records within 30 days.

Doing that, he said, would be “a literal impossibility” and a violation of rights under Title VII of the Civil Rights Act due to the adverse impact on Latinos and African-Americans, given arrest rates.

“This settlement will require the U.S. Census Bureau to replace its arbitrary and racially discriminatory use of criminal records and develop a rational, job-related method to determine whether an applicant has a criminal history that justifies his or her rejection from these essentially entry level jobs,” Klein said.

Bigler added, “Inaccurate criminal records and arbitrary background check policies disproportionately screen out minority applicants from jobs.”

The settlement, which follows more than five years of litigation, calls for the government to hire two experienced industrial organizational psychologists to develop a hiring selection process intended to greatly reduce the number of applicants refused employment based on their criminal histories.

The settlement offers two remedy options for members of the class action:

  • The first, the Records Assistance Program, is designed to provide class members with information on correcting mistakes in their criminal records, to help insure that they are not rejected by future employers. The program will be administered by ILR’s Labor and Employment Law Program.  
  • The second option involves a notification process from the census bureau giving class action members advance notice and information related to hiring for temporary positions with the 2020 census.

For the past eight years, Bigler said, ILR’s Labor and Employment Law Program has been in the forefront of bringing together diverse parties for dialogue, education and research on reducing barriers to employment for people with criminal records.

Bigler’s work in this area has included numerous workshops, roundtable discussions and conferences, including a 2015 conference with the National Association of Attorneys General.  

In addition to the Records Assistance Program that will provide direct services to the class members, a faculty group has been formed to develop a research agenda, Bigler said.

The research will analyze data collected and add to the policy discussion for increasing workplace participation of people with criminal history, she said.

Related Destination

Census settles hiring lawsuit over criminal records