Beverly Harrison was standing at an intersection around the corner from McNair Elementary School in Dallas, Texas. It was her second week as a crossing guard, and she was still getting used to the new job. Suddenly, someone emerged from the building to deliver a message: Human Resources wanted to see her. Harrison, 61, went to the office and was told something came up on her background check—an assault charge from 1975. She should turn in her things, they said. Dallas County Schools, after discovering she had a criminal record, was letting her go.
Harrison still lives with the consequences of something she did when she was 19 years old. She got into a fight and was charged with aggravated assault in the third degree. Since then, she’s never been convicted of another crime and has worked other jobs for the city, including in its Marshal’s Office, which provides various court and detention services. But more than 40 years later, that one incident from her past remains an obstacle for her to get and maintain employment.
Black Americans are incarcerated at six times the rate of whites, the Pew Research Center has found. That was a primary reason why the Equal Employment Opportunity Commission passed an enforcement guidance in 2012 that said Title VII of the 1964 Civil Rights Act forbids blanket employment discrimination of people with records. The guidance, which passed by a bipartisan 4-1 vote, said that because people from low-income communities of color are so disproportionately convicted of crimes, hiring policies that place absolute bars on candidates with a conviction will, by extension, discriminate against minorities.
Employers have since been required to grant such applicants individualized assessments and consider factors like the nature and gravity of the offense, how much time has passed, whether the applicant has demonstrated rehabilitation, and whether the past criminal offense has any direct connection to the position being sought.
But if the state of Texas has its way, those standards will no longer be codified in federal law and people like Harrison will once again be without legal protection. One in three Americans has a criminal record, according to the Department of Labor.
In November 2013, then–Texas attorney general and current Governor Greg Abbott filed a suit to block the EEOC order, and asked a federal court to issue a declaratory judgment saying it is legal for state agencies to deny jobs to people with records, and block the EEOC from issuing right-to-sue letters, a legal notification the agency issues when it determines there are grounds for a discrimination claim.
The suit was initially dismissed, but the US Court of Appeals for the Fifth Circuit revived it in June 2016 on the basis that Texas was affected by the guidance as an employer bound by Title VII—meaning that because the state hires people, and is thus forced to comply with its mandate, it has a right to challenge the guidance in court.
In August, the NAACP Legal Defense and Educational Fund and the National Employment Law Project, along with lawyers from two private firms, filed a motion to intervene. The group’s motion sought to make both Harrison and the Texas Conference of the NAACP new defendants in the case, giving its lawyers the ability to defend the guidance in court. They considered that to be crucially important, since they feared the Trump administration may not defend the EEOC’s ruling.
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Three weeks later, US District Judge Sam Cummings denied the motion after the EEOC and Department of Justice said it would “vigorously litigate” the case.
But the lawyers who want to safeguard the guidance are less than convinced the Justice Department under Attorney General Jeff Sessions will follow through on that pledge.
“There are a number of different examples that make us wary that this administration will zealously defend the guidance, or even more, might just change positions or do something to settle the case or to otherwise undermine the guidance both inside and outside the context of this litigation,” said Leah Aden, senior counsel for the NAACP LDF.
Indeed, in the Trump administration’s short history, it has already reversed several Obama-era civil rights orders, including on protecting transgender rights and Voter-ID laws and discouraging the use of private prisons.
Beth Avery, a staff attorney for NELP, said this matter requires close monitoring, because a change of position could be “expressed via court filing as opposed to a press release or other such statement.” She also worries that the DOJ lawyers might present a weak defense, which would be difficult to track.
Trump has also nominated Eric Dreiband to lead the DOJ’s Civil Rights Division—which is representing the EEOC in this case—based on Sessions’s recommendation. A former Bush administration official, Dreiband is known for his controversial civil-rights background. He once represented Abercrombie & Fitch before the Supreme Court when it refused to hire a 17-year-old Muslim woman because she wore a hijab. In 2014, he penned a column in Forbes opposing “ban-the-box” initiatives that prevent employers from asking about an applicant’s criminal history on the first round of the application process.
Avery is also concerned that President Donald Trump has made clear his intention to simply undo the policies of his predecessor, which could extend, quite possibly, to protections for people with criminal records. “There is a lot of uncertainty about what the Trump administration will ultimately do,” she said.
If Texas wins its lawsuit—or if the Trump administration reverses or undermines the government’s position—it will strip investigators across the country its most critical tool to evaluate whether an employer’s hiring policy complies with civil-rights law. Activists say that would lead to more instances where people are unfairly denied employment, and a sizable portion of the country would be left unable to work.
Over the last eight years, Democrats and Republicans alike have recognized the injustice of holding people hostage to the blunders of their past. More than 150 cities and counties and 29 states have adopted “ban-the-box” policies. Even the Koch brothers, the billionaire benefactors of conservative and libertarian causes, have removed a conviction history check-box on job applications for their company, Koch Industries, the second-largest privately owned corporation in the United States.
For Harrison, that suggests a growing understanding of not only disparities in the criminal-justice system, but of the human toll categorical bans take on millions of Americans’ lives.
“I made a mistake, as people do, when I was young, but I do not think that that mistake should prevent me from working and making money to support myself and my family many decades later,” she said. “There are a whole lot of people in the same predicament I’ve been in. Everybody makes mistakes and they deserve a second chance.”
Ironically, one person who should understand this is Texas Attorney General Ken Paxton, who is arguing the case for his state. He is currently under indictment for securities fraud and expected to stand trial this year.
“If he’s convicted, does that mean he shouldn’t get a job for the rest of his life?” Aden said. “I’m sure he would think otherwise, right? Why doesn’t that apply to regular people?”
