The U.S. Census rejected 69-year-old Evelyn Hauser from a job because of her past arrest, even though she was never formally convicted and even though she hasn’t had any interactions with the criminal justice system in the nearly three decades since. The federal government didn’t have a problem with her criminal record when it hired her for the 1990 Census, so a class action lawsuit is asking: “What’s the problem now?”
Ms. Hauser is one of the named plaintiffs in Johnson v. Locke, a federal class action lawsuit challenging the Census’ screening practices for applicants with arrest records. The purpose of this lawsuit is to effect “simple changes to the Census’ hiring process that not only reduce its discriminatory effects, but will promote the public interest by expanding [its] hiring base in historically under-counted communities, thereby helping to achieve [the federal government’s] mandated goal of counting all who live in the United States.”
The screening process goes like this: for every person who applies for one of these over one million temporary but well-paying positions, the Census runs an FBI criminal background check. If an arrest turns up, the applicant is ineligible for employment unless she can, within thirty days, produce a court document describing the disposition, i.e., outcome of the case.
There are several problems with this screening system. First, the FBI database is notoriously incomplete. Half of all arrest records in the database are missing dispositions, which means that a significant number of applicants with arrests will have to track down these court documents. The 30-day requirement is especially burdensome for Ms. Hauser and other people whose cases predate the computerization of court files.
Second, without having a complete picture of an applicant’s criminal history, the Census risks basing its hiring decisions on arrests and thus violating Title VII of the Civil Rights Act of 1964. Title VII prohibits employment policies that unjustifiably and disparately impact racial minorities. Indeed, the Equal Employment Opportunity Commission – the federal agency charged with enforcing Title VII – advises employers that bans on people with arrest records discriminate against racial minorities. Not only do racial minorities experience higher arrest rates, but arrests also have limited value in screening applicants since they are not reliable indicators of criminal activity.
As a result of this screening process, the complaint notes, “All applicants, whether or not they will work with the public, who have an arrest record at any point in their lives – no matter how trivial or disconnected from the requirements of the job – face an arbitrary barrier to employment.” All Ms. Hauser wants, though, is to “continue contributing to her community.”
For more information on this case, visit the Census Worker Class Action Website.