Testimony in Support of Testing Programs for Employment and Housing Discrimination

Paul Keefe

Testimony of Paul Keefe, Associate Counsel
Next Door Project, Community Service Society of New York
In support of Intro. 421 and Bills Establishing Testing Programs for Employment (Int. 690) and Housing Discrimination (Int. 689)
Committee on Civil Rights of the New York City Council

This testimony is presented on behalf of the Community Service Society of New York (“CSS”), a nonprofit organization serving low-income New Yorkers for over 170 years. CSS has long believed that work is the surest pathway out of poverty, and, since 2008, our Legal Department has addressed employment barriers faced by people with criminal records. Through our Next Door Project, we train and supervise a cadre of retired senior citizen volunteers to help individuals obtain, understand, and fix mistakes on their criminal records, reaching over 500 clients annually. Additionally, we help people obtain certificates that demonstrate rehabilitation, advocate for policy changes on the state and local level, and litigate individual and class action cases.

CSS supports Intro. 421, which requires the City Commission on Human Rights (“Commission”) to publish in its annual report the extent and results of investigations initiated by the Commission. CSS also endorses Intros. 690 and 689, which require Commission-led investigations to detect employment and housing discrimination. Intro 690, however, should be amended to explicitly include all classes protected by the City Human Rights Law—particularly people with criminal records.

Employment discrimination against people with criminal records, especially in entry-level positions, is rampant, as demonstrated by a 2005 report produced by the Commission called “Race at Work: Realities of Race and Criminal Record in the NYC Job Market” written by Drs. Devah Pager and Bruce Western. [1] The report relied on results from matched pairs of testers of young white, Latino, and African-American men who applied for 1470 entry-level jobs throughout New York City. Not only were whites more likely to get a callback or job offer than Latinos or African-Americans, African-Americans were nearly half as likely to be considered as whites.[2] When white testers presented with a recent felony record, they were as likely as Latinos and much more likely than African-Americans to receive a callback or job offer.[3] Overall, people with criminal records are only half as likely to get a call back than those without; for African-American applicants, the likelihood is reduced to one-third.[4]

In a follow-up article summarizing the New York City study and other reports using testers, Dr. Pager concludes “that race has large effects on employment opportunities, with a black job seeker anywhere between 50 and 500 percent less likely to be considered by employers as an equally qualified white job applicant.”[5] Because employers have less information about an individual at the initial application stage, they are more likely to be guided by conscious or unconscious bias when deciding who to interview and hire,[6] and these biases are more powerful when an applicant presents negative information, like a criminal record that correlates with racial stereotypes.[7] Unconscious bias is powerful: In a survey of nearly 200 employers, 61.7% said they were “very likely” or “somewhat likely” to hire a African-American man with good references and interpersonal skills, even though he had a year-old felony drug conviction and was released from prison the previous month.[8] When actually presented with an applicant matching those characteristics, however, only 14.7% of the same employers called the person for an interview.[9] The discrepancy between what employers say they will do versus what they actually do shows the need for testing.

Countless clients of the Next Door Project describe being denied employment because of their records. A few relay being told that their record was a problem; others who had promising interviews never heard from an employer again after a background check was done. Most, however, simply never receive a callback after disclosing their record on an initial job application. These problems persist despite Correction Law Article 23-A—on the books since 1976 and enforced through the State[10] and City Human Rights Laws[11]—that prohibits public and private employers from firing or declining to hire someone just because of a criminal conviction. The Fair Chance Act (Int. 318), currently before the City Council, would prohibit employers from inquiring about an applicant’s conviction history until after offering the person a job, cutting down on this blatant—yet difficult to prove—form of discrimination.

Even if the Fair Chance Act is enacted, however, testing will be necessary to ensure employers comply with this law, and testing for this kind of strict legal compliance need not involve matched pairs. As an illustration, the Fair Chance Act lays out a process employers must follow: a person cannot be asked about her or his record until after a conditional offer of employment. If a background check is done and an employer no longer wants to hire the
person, it must give her or him a copy of the report, written reasons why they can legally be denied employment under the City Human Rights Law, and seven days to respond. Multiple individual testers sent to the same employer can easily discover whether or not these requirements were followed, and consistently failing to comply would signal the need for more guidance and enforcement by the Commission.

Testing should be conducted with the goal of making systemic change, which may be achieved by initiating pattern and practice litigation either by the Commission itself or the City’s Corporation Counsel.[12] Additional funds—in excess of current budget proposals—should be given to the Commission so it can ensure that testers are selected, trained, and supervised in a way to reduce bias and ensure reliable results. To the extent possible, matched testers should share all characteristics except the one to be tested, and be trained to conduct themselves similarly in interviews, which requires extensive instruction and practice, along with daily post-interview reviews.[13] The Commission must be given a budget enabling it to set up a robust testing program.

Testing is a vital tool to detect the subtle forms of discrimination most prevalent, yet most obscured, in our City today. CSS endorses the Council’s interest in testing for employment and housing discrimination and reporting those results. Thank you for the opportunity to comment on this legislation.



[1] Devah Pager & Bruce Western, Race at Work: Realities of Race and Criminal Record in the NYC Job Market 2 (2005), available at http://www.nyc.gov/html/cchr/downloads/pdf/publications/race_report_web.pdf.
[2] Id. at 3.
[3] Id. at 6-7.
[4] Devah Pager, The Mark of a Criminal Record 108 Am. J. Soc. 937, 960 (2003), available at http://www.princeton.edu/ ~pager/pager_ajs.pdf.
[5] Devah Pager, The Use of Field Experiments for Studies of Employment Discrimination: Contributions, Critiques, and Directions for the Future 609 ANNALS OF THE AM. ACAD. OF POL. & SOC. SCI. 104, 114 (2007), available at http://scholar.harvard.edu/files/pager/files/annals_pager.pdf.
[6] Id. at 118.
[7] Devah Pager, The Mark of a Criminal Record 108 AM. J. SOC. 938, 944–45 (2003), available at http://scholar.harvard.edu/ files/pager/files/pager_ajs.pdf. Recipients of public benefits also carry a negative credential. Id. at 942. This demonstrates the need to test source of income discrimination in housing, which is also prohibited by the City Human Rights Law. N.Y. City Admin. Code § 8-107(5).
[8] Devah Pager & Lincoln Quillian, Walking the Talk? What Employers Say Versus What They Do, 70 AM. SOC. REV. 355, 362–63 (2005), available at http://scholar.harvard.edu/files/pager/files/asr_pagerquillian2.pdf
[9] Id. at 365. By contrast, half of the employers called back White applicants with criminal records. Id.
[10] N.Y. Exec. L. § 296(15),(16).
[11] N.Y. City Admin. Code § 8-107(10),(11).
[12] See N.Y. City Admin. Code § 8-402.
[13] Pager supra note 5, at 117.

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