On April 13, 2010, the Employment Discrimination Project filed a class action challenge of the misuse of arrest histories by the U.S. Census Bureau during its massive hiring campaign for this year’s census effort. In Eugene Johnson, et al., v. Gary Locke, Secretary, U.S. Department of Commerce, No. 10-cv-3105 (S.D.N.Y. filed on April 13, 2010), the U.S. Census Bureau is accused of unlawfully screening out applicants with arrest records, regardless of whether the arrest led to an actual conviction or to nothing at all. Because of the overrepresentation of people of color in the criminal justice system and the rejection of otherwise qualified workers without an analysis of job relatedness, the complaint alleges that the use of an arrest history in its hiring process violates the disparate impact provision of Title VII of the Civil Rights Act of 1964. The putative class is defined as all African American, Latino and Native American persons who applied for temporary employment with the U.S. Census Bureau, were otherwise suitable for employment, but were sent a notice to produce official court documentation or fingerprints regarding any arrest with no record of conviction during the 2010 census hiring process.
As articulated in the complaint, applicants for temporary positions with the U.S. Census Bureau are screened out after their names are located in an FBI database indicating a match with an arrest record. Per U.S. Bureau of Justice Statistics, the FBI database contains numerous incomplete records because of its reliance of state run databases that are likewise infected and the lack of notification by states when records are sealed, expunged or, in some cases, destroyed. Once a name match is made in the FBI database, U.S. Census Bureau job applicants are then required to produce “official court” records from any criminal case that appears in their criminal records within 30 days. The U.S. Census Bureau does not provide job applicants with a copy of the record which triggered the letter, thus the applicant is unsure of what activity may be of concern to the agency. Moreover, the notice does not explain what “official court” documentation will be accepted nor does it clarify how to handle juvenile, sealed, expunged, lost or destroyed records. The complaint also alleges that the lack of distinction related to the time elapsed since conviction or the level of alleged misconduct, including non-criminal violations like loitering, further makes compliance with its 30 day request burdensome to the worker.
The named plaintiffs are Eugene Johnson and Evelyn Houser. Mr. Johnson, from New York City, has a 15 year old misdemeanor conviction. He also has experience working with the public since his conviction including conducting market research and research for the Coalition for the Homeless. Mr. Johnson currently works with a catering company. Ms. Houser, from Philadelphia, was arrested and completed a diversionary program over 30 years ago. She is currently retired after a career of working in housekeeping, security and office positions, counseling, home health aide positions, data entry and retail. Indeed, Ms. Houser also worked for the U.S. Census Bureau in 1990. Neither Mr. Johnson nor Ms. Houser has been convicted of any offense since these over decade old arrests and adjudications. Since the original complaint, additional named plaintiffs have been added, including Felicia Rickett-Samuels, Anthony Gonzalez, Precious Daniels, and Ignacio Riesco.
The case is handled by Audrey Wiggins and Sarah Crawford. The Lawyers’ Committee team is co-counsel with Adam Klein, Samuel Miller, and Ossai Miazad of the law firm of Outten & Golden along with the Center for Constitutional Rights, Community Legal Services of Philadelphia, the Community Service Society, the Indian Legal Resource Center, LatinoJustice PRLDEF and Public Citizen Litigation Group.
To learn more about the Amended Complaint, please click here.
To read the First Amended Class Action Complaint, please click here.
To read the press release announcing the Amended Complaint, “Federal EEOC Warned Census Bureau of Likely Discrimination, Lawsuit Claims,” please click here.
