EEOC v. Morgan Stanley
In 2016, Outten & Golden secured a landmark $15 million settlement for 17,000 Black and Latino job applicants who were denied work on the 2010 U.S. census.
The Census Bureau called the 2010 census “the largest mobilization of a civilian workforce conducted by the Federal Government.” It hired more than 850,000 temporary employees for the undertaking.
The plaintiffs alleged that the Census Bureau had a policy requiring almost every applicant who’d ever been arrested to produce court documentation within 30 days. This policy applied regardless of whether they’d been convicted, the nature of the arrest, its relationship to the job, or when it took place, according to the lawsuit. Among the few applicants who were able to provide the documentation, the bureau allegedly followed an arbitrary procedure that still screened out many individuals.
The policies and practices disproportionately harmed Black and Latino applicants, who are arrested and incarcerated at rates substantially higher than white people, the plaintiffs alleged. The disparate impact violated Title VII of the Civil Rights Act of 1964 because it was not job related or consistent with business necessity, the plaintiffs alleged.
In addition to the payment, the Census Bureau agreed to hire consultants to help improve its criminal background screening process for the 2020 census. In addition, the agency gave rejected applicants a choice of two options: they could take advantage of an initiative to help them clear up issues that shouldn’t be on their record reports, or it would give them advance notice of temporary hiring opportunities for the 2020 census.
Outten & Golden partnered on this case with Community Legal Services of Philadelphia, Community Service Society of New York, the Indian Law Resource Center of Helena, Montana, LatinoJustice PRLDEF, the Lawyers Committee for Civil Rights Under Law, and the Center for Constitutional Rights.
Framing the Issue
- Roughly one in three adults in the United States—about 80 million people—has a criminal record, according the National Employment Law Project.
- People with criminal records form a surprisingly large part of the population seeking work—almost half the men in the labor pool. In total, more than 25 percent of workers in the active workforce have at least one prior conviction. (RAND)
- Black Americans are disproportionately incarcerated, comprising 37% of individuals behind bars even though they account for just 13% of the nationwide population, according to the Prison Policy Initiative.
- People who interact with the criminal justice system are more likely to be poor and Black, the Brennan Center for Justice found.
- One out of every three Black boys born today can expect to be sentenced to prison at some point in their life, compared to one in six Latino boys and one in 17 white boys, according to the NAACP and an analysis of Department of Justice data published in the Prison Journal.
- This general trend persists even after researchers control for background factors, such as parental marriage rates, education, and wealth. For example, black men who grew up in the top 1% of household incomes are incarcerated at the same rate as white men who grew up in families making $36,000 per year.
- To remedy the disparate impact effect, 36 States and over 150 cities and counties have implemented “Ban the Box” policies that remove conviction and arrest questions from job applications and delay background checks until later in the hiring process.
- Having a job has been shown to reduce recidivism, and individuals are less likely to commit crimes when they have stable, full-time employment. (Brookings)
