Despite much progress in U.S. workplaces, there remain significant barriers to accessing employment, creating affirmative opportunities for career advancement of women and minorities, ending employment discrimination especially for lesbian, gay, bisexual and transgender (LGBT) people of color; and ensuring fair access to the courts for employees who feel they have been unfairly treated in the workplace.
Discrimination against Unemployed Workers: The 2008-2009 recession exacerbated the existing wealth gap between Whites and communities of color. While the recession affected the entire population, the current unemployment rate for African Americans is roughly double the rate for Whites. Increases in incarceration rates, particularly among minorities, have made it more difficult for the unemployed to find new employment. Despite the ongoing challenges and barriers facing unemployed and underemployed populations, additional obstacles such as the overuse and misuse of criminal and arrest records and credit checks have a discriminatory impact on people of color.
Criminal Background Checks: The overbroad use of criminal background checks by employers to screen out job applicants has a disproportionate impact on minorities. According to the Society of Human Resource Management, which comprises most major U.S. companies, more than 90 percent of employers use criminal background checks to screen applicants for some or all positions. Furthermore, some even screen out applicants with arrest records that did not lead to a conviction. Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population: in 2010, African Americans made up 28 percent of all arrests, even though African Americans only comprised approximately 14 percent the population generally. In 2008, Hispanics were arrested for federal drug charges at a rate of approximately three times their proportion of the general population.
In 2012, the Equal Employment Opportunity Commission (EEOC) adopted enforcement guidance on the use of criminal background checks in hiring. The guidance prohibits discrimination against persons solely because they have an arrest record that did not lead to a conviction. The guidance generally requires that employers conduct individualized assessments based on a list of criteria to determine if an applicant’s criminal record is job-related and necessary for the business. Despite this guidance and enforcement by the U.S. Department of Labor (DOL), the Office of Personnel Management, which sets government personnel policies, requires that applicants for a wide swath of government positions undergo credit and criminal background checks.
Credit History Checks: Currently, 47 percent of major employers use credit background checks during the hiring process to screen out employment applicants with poor credit. This percentage may be even higher for smaller companies. Research consistently shows that African-American and Latino households tend to have worse credit, on average, than White households. The use of poor credit to cut off employment opportunities has had a disparate impact on minorities. Despite the fact that there is no proven link between personal credit reports and criminal behavior or performance of a specific job, employers still use these checks as a barrier to employment.
Ending Employment Discrimination for LGBT People of Color
While the government recently accepted a recommendation in the Universal Periodic Review process that it “take measures to comprehensively address discrimination against individuals on the basis of their sexual orientation or gender,” there is no federal law that explicitly protects LGBT people from employment discrimination and a majority of U.S. states (32) currently lack such explicit protections for both sexual orientation and gender identity. The reality of being fired, denied a job, or experiencing some other form of discrimination in the workplace is one that too many LGBT people, particularly LGBT people of color, have personal experience with today. For example, surveys of Black LGBT people put rates of employment discrimination near 50 percent. LGBT people of color have higher rates of unemployment compared to non-LGBT people of color (e.g. unemployment rates for transgender people of color have reached as high as four times the national unemployment rate). In addition, research has shown that LGBT people of color, particularly Black LGBT people, are at a much higher risk of poverty than non-LGBT people (e.g., Black people in same-sex couples have poverty rates at least twice the rate of Black people in opposite-sex married couples—18 percent vs. 8 percent).
For Asian and Pacific Islander LGBT people, those who say they have experienced employment discrimination based on their sexual orientation range from 75 to 82 percent. The number of transgender people of color who report having actually lost a job because of discrimination is especially daunting. Thirty-two percent of Black transgender respondents reported having lost a job due to bias. The numbers for other transgender people of color are 36 percent for American Indians, 30 percent for Latinos, and 14 percent for Asians and Pacific Islanders.
In a positive development, President Obama recently announced his intention to issue an executive order barring all federal contractors from engaging in discrimination based on sexual orientation or gender identity. This new requirement will benefit LGBT people of color. •