Census Bureau’s $15M Hiring Bias Settlement OK’d

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By Patrick Dorrian

Sept. 22 — The U.S. Census Bureau will pay $15 million to a class of “hundreds of thousands” of black and Latino job seekers who claim they were shut out of jobs for the 2010 census because of a flawed criminal history screening process, under a settlement given final approval by a federal judge in New York ( Gonzalez v. Pritzker , S.D.N.Y., No. 1:10-cv-03105, settlement approved 9/20/16 ).

The agreement brings renewed attention to an issue targeted by federal civil rights enforcement authorities and the Obama administration—the difficulty job applicants with criminal records can have finding work.

The view of the administration and the Equal Employment Opportunity Commission is that employer use of criminal histories to make employment decisions sometimes violates federal discrimination laws because it can significantly disadvantage blacks and other racial minorities who are more likely to have been arrested or otherwise interacted with the criminal justice system.

Although the employer here was the government itself, one of the attorneys for the class told Bloomberg BNA that private employers also may need to address the issue.

“Employers that use criminal background check screening in making hiring decisions should be thinking critically about their policies and procedures because these screens invariably have a disparate impact on African Americans and Latinos and the social science research simply doesn’t support the assumptions employers may rely on in justifying their overly restrictive screening,” Ossai Miazad of Outten & Golden LLP in New York said in a Sept. 22 e-mail.

Settlement Also Requires New Hiring Process

The Census Bureau didn’t admit liability on the class’s allegations by entering into the settlement, Judge Frank Maas of the U.S. District Court for the Southern District of New York noted Sept. 20 in granting final approval of the pact.

In addition to the $15 million in monetary relief, the agreement obligates the bureau to work with outside consultants in developing new hiring criteria for use with the upcoming 2020 census. The government is solely responsible for the costs of those efforts, which are not included in the settlement amount, Maas said.

That measure should “open up many thousands of jobs to applicants with records,” lead class counsel Adam Klein said in Outten & Golden’s Sept. 21 statement. Under the agreement, he added, the Census Bureau is required “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 which justifies his or her rejection from these essentially entry-level jobs.”

The lawsuit was filed in April 2010 under Title VII of the 1964 Civil Rights Act. Maas later certified a class of approximately 400,000 blacks and Latinos in July 2014.

A third of the $15 million settlement will be used to fund a records assistance program for class members who want help in correcting mistakes in their criminal history records to guard against rejection by future employers based on the incorrect information allegedly relied on by the Census Bureau. Cornell University’s College of Industrial and Labor Relations will administer the program.

Class members alternatively may choose to receive advance notice and information from the Census Bureau regarding hiring for temporary jobs available in connection with the 2020 census—the same jobs they lost out on in 2010 due to the alleged discrimination, the court said.

The settlement will also be used to pay service awards of $10,000 each to 10 named plaintiffs, as well as $8,327,088 in attorneys’ fees and $1,206,700 in litigation costs to class counsel, Maas said.

Authorities, Administration Watching Issue

Approximately 70 million Americans have some kind of criminal record, according to the Justice Department.

The EEOC in April 2012 updated its enforcement guidance on the “Consideration of Arrest and Conviction Records in Employment Decisions” under Title VII.

In addition, the Obama administration announced April 29 the establishment of a Federal Interagency Reentry Council to lead the federal government’s work on the rehabilitation and reintegration of individuals returning to their communities from jails and prisons. The White House Office of Personnel Management said in May that it will issue a final rule in September to restrict federal agencies from asking about job applicants’ criminal histories early in the hiring process.

“We anticipate that both private companies and government agencies will develop new ways to weigh employers’ need to ensure that applicants with criminal records will have a fair chance when they seek employment opportunities, both to their benefit, the benefit of their communities,” and to the general public as “employment of those with past records has been shown to greatly reduce recidivism,” Miazad said in Outten & Golden’s Sept. 21 statement.

The Justice Department in April acknowledged having agreed to the settlement on behalf of the Census Bureau and the Department of Commerce. In response to a request for comment Sept. 22, a DOJ representative referred Bloomberg BNA to the U.S. attorney’s office. The office declined to comment.

Justin M. Swartz, Lewis M. Steel, Sally J. Abrahamson and Deirdre Aaron of Outten & Golden LLP in New York, Judy Whiting and Paul Keefe of Community Service Society in New York, Sharon Dietrich of Community Legal Services Inc. in Philadelphia, Ray P. McClain of Lawyers’ Committee for Civil Rights Under Law in Washington, Darius Charney of Center for Constitutional Rights in New York, Jackson Chin of LatinoJustice PRLDEF in New York, and Robert T. Coulter of the Indian Law Resource Center in Helena, Mont., also represented the class. The U.S. attorney’s office in New York represented the government.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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