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Amended Complaint in Johnson v. Department of Commerce

In an amended complaint filed with the Southern District of New York District Court on August 5, 2010, the Lawyers’ Committee for Civil Rights Under Law, Outten and Golden LLP, and other attorneys for the plaintiffs outlined their case against the U.S. Census Bureau (“Census”).

Some of the highlights of the complaint are as follows:

  • FBI Database Check:
    Census used the FBI database to search for all arrests of every applicant to work as part of the 2010 decennial Census.  Approximately 14 million Americans have been arrested and virtually all of their criminal records remain in the FBI database forever.  Among the information that may be included in the FBI Database includes arrests which did not result in convictions, juvenile criminal records, and criminal records that are decades old.  Half of the records lack final disposition information, such as dismissals and expungements.
  • 30-Day Letters:
    If a match between an applicant and an entry in the FBI database occurred, Census sent “30-Day Letters.”  These letters required that “nearly all job applicants who have ever been arrested produce, within 30 days, the ‘official court documentation’ for any and all of their arrests.”  This expensive and time-consuming step in Census’ application process eliminated 93% of those applicants (over 700,000 people) from consideration for employment.
  • Unfair and Incoherent Suitability Policy:
    This litigation caused Census to reveal details as to how it screened and analyzed applicants’ criminal background for the purpose of making final suitability for the first time in at least a decade.  It is now clear that the combination of FBI Database searches and “30-Day Letters,” effectively served as a “no-arrest” hiring policy.  Census’ policies as to which crimes disqualify applicants from further consideration have been overbroad and changed arbitrarily over the course of the hiring process.  Additionally, where the criteria allowed for discretion, Census officials employed ad hocand inconsistent standards based largely on gut-instinct.
  • Denial by Delay:
    Of the recipients of the 30-Day Letter, less than 5% were ultimately deemed eligible for hire.  The delays caused by the Census’ FBI database search and 30-Day Letter prevented a majority of  those whose applications survived that process from getting jobs, as many of them were filled in the interim.
  • Discriminatory Impact:
    Because the arrest and conviction rates of African Americans, Latinos, and Native Americans far exceeds those of whites nationwide, the arbitrary use of criminal history in employee selection imports racial and ethnic disparities into the employment process.  That is in violation of Title VII of the Civil Rights Act of 1964, which provides that “All personnel actions affecting…applicants for employment…in executive agencies shall be made free from any discrimination based on race, color…or national origin.”
  • Early Warning of Possible Discriminatory Effect by the EEOC:
    The Equal Employment Opportunity Commission notified Census in July 2009 that it’s criminal background policy seemed to have a discriminatory impact that could potentially “run afoul” of Title VII of the Civil Rights Act.  Additionally, EEOC claims were filed against the Census Bureau for race discrimination as early as October 2008.  Both separately and in combination, these things should have made Census aware of the discriminatory impact of its criminal background screening devices.

In addition to the highlights mentioned above, the complaint listed several new plaintiffs, in addition to Eugene Johnson and Evelyn Houser who filed the class action lawsuit on April 13, 2010.  The current plaintiffs are:

  • Eugene Johnson:
    Mr. Johnson is a 48 year old African American resident of the Bronx who has lived in New York City all of his life. Mr. Johnson has extensive work history in positions involving direct interaction with the public. Additionally, he has many years of experience in the field of market research and doing research for the Coalition for the Homeless, making him particularly knowledgeable about communicating with people and gaining their trust so that he can get accurate responses to questionnaires. These things make him an ideal candidate for a Census Taker (or Enumerator) position. Furthermore, Mr. Johnson has a GED, has taken college classes through the State University of New York’s Manhattan and Brooklyn Educational Opportunity Centers, and is skilled in data entry and explaining complex concepts in simple terms, making him equally suitable for an office position.
    Mr. Johnson was arrested in 1995 for a misdemeanor assault charge after a dispute with his landlord over rent. He was convicted after a brief bench trial in 1996, but was only sentenced with community service. After applying to the Census in January 2010, Mr. Johnson received a 30-Day Letter. He complied with the instructions on the letter, obtained official court documentation, and wrote a letter to the Census discussing his conviction and explaining his interest and qualifications for Census work. Several months after submitting his documentation, Census notified Mr. Johnson that he had been placed on an “eligibility list,” but that it was unlikely that he would be able to get a position as most of them had been filled.
  • Evelyn Houser:
    Ms. Houser is a 69 year old African American resident of Philadelphia. She has lived in Philadelphia for decades and has been highly involved in her community for much of that time. For example, she has served as a block captain, a committeeperson, and a poll worker during elections. She is currently retired, but has a history of work in housekeeping, security and office positions, counseling, data entry, retail, and as a home health aide, in addition to having raised four children on her own. Ms. Houser was employed by Census in 1990, during which time she began as an enumerator and was promoted to an office job. In her office job, she was involved in hiring Census workers. She performed both jobs with Census well.
    In 1981, Ms. Houser was charged for theft and forgery, after having found a check on the ground and trying to cash it in order to buy for food for her family. Ms. Houser was never convicted of that crime, but instead was placed in a diversionary program through which she paid her debt to society. Ms. Houser applied to work the 2010 Census in 2009. She received a 30-Day Letter in March 2009. Having not been provided with details about the arrest record about which the Letter was inquiring, Ms. Houser obtained a set of fingerprints and sent them to Census on the 31st of March, within the 30 day period, so that Census could run a more in-depth background check on her. The letter did not make it clear to her that she might have to provide court documentation in order to comply with Census’ requests. In a May 21, 2009 letter, Ms. Houser learned that her application had been denied as Census believed that she had failed to provide the necessary information within the allotted time. Ms. Houser appealed to the EEO office of the Department of Commerce and the EEOC, the latter of which gave her the right to file a charge against Census in federal District Court.
  • Felicia Rickett-Samuels:
    Ms. Rickett-Samuels is an African American resident of Stamford, Connecticut. She is a paralegal at a law firm in Manhattan, where she has worked for the past nine years. Her job causes her to deal with sensitive documents and to interact with the firm’s clients on a daily basis. She has a Bachelor’s and a Master’s degree. Additionally, she is a Notary Public in the State of New York, a commission requiring that she be a person of good moral character, and a member of the Board of Directors of the College and Community Fellowship at the City University of New York Graduate Center. Ms. Rickett-Samuels also volunteers as a mentor with the Jewish Child Care Association and with an organization called Upwardly Global, which provides career mentorship to immigrant job seekers.
    Ms. Samuels was convicted of three felonies in the past – attempted assault in 1989, attempted sale of a controlled substance in 1993, and possession of marijuana in 1998. Since her last crime in 1998, she has also been issued a Certificate of Good Conduct by the State of New York Division of Parole, which signifies that she has been rehabilitated to the satisfaction of the State and establishes a presumption of rehabilitation according to New York’s Correction Law section 753(2). Ms. Samuels disclosed both her prior criminal history and a copy of her Certificate of Good Standing in her initial application to work for the Census Bureau. At the end of March 2009, she received a 30-Day Letter. She sent her reply back with the same Certificate of Good Conduct that she included with her application materials. Approximately a week later, she received notification that her application for temporary employment had been denied. She called the Census Bureau in Washington, DC, but was not told why she was denied or that she could appeal the Census’ decision.
  • Anthony Gonzalez:
    Mr. Gonzalez is a Latino resident of Riverview, Florida. He has been an Alcohol and Substance Abuse Treatment Counselor for the New York State Department of Correctional Services (“DOCS”) from 1993-2009, having retired and relocated to Florida in 2009. Mr. Gonzalez is well-qualified for a position with the Census as he scored above 90% on his test portion of his initial application, speaks Spanish, and is skilled in working with a diverse population.
    Mr. Gonzalez suffered from a serious drug abuse problem in the 1980s, during which time he was convicted of three counts of felony burglary and one weapons possession. After completing substance abuse treatment following his last conviction, he wanted to help people from going down the same hard road he had been down, which is what prompted him to earn his Certified Alcohol and Substance Abuse Counselor credential from New York State. Mr. Gonzalez received a 30-Day Letter in response to his application. Because his cases were so old and he had a limited amount of time to procure the information requested by the Census, he submitted printouts from the DOCS Inmate Lookup website, copies of his retirement certificate, and a letter from the Department of Correctional Services commending him for his outstanding service. Mr. Gonzalez has yet to receive a response from the Census Bureau.
  • Precious Daniels:
    Ms. Daniels is an African American resident of Detroit, Michigan where she has lived in the largely-African American community on the west side of Detroit for her entire life. Ms. Daniels attended high school in Detroit, and completed two years of college at Marygrove College where she studied psychology. She received a certification in phlebotomy from Crocker Adult Center in 2000, and since then she has worked in various Detroit-area hospitals and medical centers as a phlebotomist. She works with the public day in and day out, and it is her job to make people comfortable enough that she is able to draw their blood. Because of her skill with people and her familiarity with, and comfort in, her neighborhood, Ms. Daniels believed that she could be of assistance to the Census by helping them access her community.
    Ms. Daniels was arrested in November 2009 during a protest of Blue Cross Blue Shield Michigan that was aimed at reducing their lobbying efforts to reduce health care coverage. She, along with others, was arrested for blocking the doorway to the office. She was arrested, released on $50 bail, and appeared to face her charge in court, at which time the charge of disorderly conduct levied against her was dropped. Since charges against her were dropped, Ms. Daniels believed that the Census Bureau must have had her confused with another Precious Daniels. She paid her local police office to take her fingerprints and sent them to Census in order to dispute her arrest record. The Census Bureau responded that she was, indeed, the person for whom they had arrest records and that she would need to provide them with official court documentation. When Ms. Daniels went to her District Court in an effort to obtain such documentation on her brief arrest and hearing, she was told that there was no record for her as she had never been prosecuted. Census has not responded to that information.
  • Ignacio Riesco:
    Mr. Riesco is a Latino resident of Massachusetts. He is a student at Harvard University in the Faculty of Arts and Sciences, where he is finishing his undergraduate degree and preparing for law school. He is also in the process of starting a charity that brings students and professors to a local women’s shelter where they will do volunteer work.
    Mr. Riesco was wrongly arrested for stealing money from his employer while working in ticket sales at Walt Disney World in Orlando Florida. After his initial arrest, it was determined that he was not responsible for Walt Disney World’s financial loss and the charges against him were dropped. In March 2010, Mr Riesco applied for a temporary job with Census. He received a 30-Day Letter in April, prompting him to send a disposition document of the wrongful arrest case showing that all of the charges against him had been dropped. Mr. Riesco called Census to confirm receipt of his reply to their Letter and check on the status of his application and was told that it would take up to five weeks for his file to clear but that he should not worry because Census was still hiring. After the five week period expired, Mr. Riesco made repeated calls but, to this date, he has not received a decision on his application.

The following are the claims laid out by the Plaintiffs against the Census Bureau:

  1. The Census hiring process has a discriminatory racial and ethnic impact.

  2. The 30-Day Letter created a barrier to employment that is neither job related nor consistent with business necessity.
    – Compliance with the 30-Day Letter was impossible for many applicants.
    – Compliance with the 30-Day Letter was unduly burdensome.
    -The 30-Day Letter was ambiguous and created confusion.
    -The 30-Day Letter caused unnecessary delay resulting in denial of employment.
  3. The “adjudication” criteria (30-Day Letter and criminal background screen) created a barrier to employment that is neither job related nor consistent with business necessity.

  4. There are less discriminatory alternatives that would better achieve Census’ legitimate hiring interests.

Posted on

July 21, 2015