Brian M. Murray *

Jason Lawson[1] is a twenty-five-year-old African American male with a criminal record.[2] He is currently unemployed despite possessing a high school diploma and an associate’s degree from a local, urban community college, which is more higher education than the vast majority of his neighbors.[3] He plans to earn his bachelor’s degree in the evening once he finds steady employment.

Continue reading.


* Abraham Freedman Fellow and Lecturer-in-Law, Temple University, Beasley School of Law; J.D., 2011, magna cum laude, Notre Dame Law School; B.A., 2008, Philosophy and Political Science, summa cum laude, Villanova University. I would like to express my gratitude for the comments of Professor Rick Greenstein and Professor Jennifer Mason McAward while drafting this article. I also would like to extend a heartfelt thank you to my wife, Katherine, for her unyielding support, my daughter Elizabeth, for her inspiring wonder and curiosity in all things, and my entire family, for their unconditional love, continuous patience, and enduring encouragement.

        [1].    The following account is a fictional scenario based on the author’s experience as a practicing attorney in both the criminal defense and employment law contexts.

        [2].    Mr. Lawson, as an African American male, is sadly somewhat average when it comes to his criminal record. Statistics indicate that disproportionate shares of African American males have some type of criminal record, whether that means a conviction or an arrest record. See Thomas P. Bonczar, Bureau of Just. Stats., U.S. Dep’t of Just., NCJ 197976, Prevalence of Imprisonment in the U.S. Population, 1974–2001, 5–6 (Aug. 2003), available at See generally Erica Goode, Many in U.S. Are Arrested by Age 23, Study Finds, N.Y. Times, Dec. 19, 2011, at A16 (noting 30.2% of twenty-three-year-olds surveyed reported having been arrested for “an offense other than a minor traffic violation,” compared to 22% who made a similar report in a 1965 study). This has caused the Equal Employment Opportunity Commission (“EEOC”) to conclude that some employment practices may have a disparate impact on African Americans and Latinos. EEOC Guidance No. 915.002, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 25, 2012) [hereinafter EEOC, Guidance], available at http: //

        [3].    Only roughly 20% of African Americans over twenty-five possessed a college degree as of 2010. U.S. Census Bureau, Statistical Abstract of the United States: 2012 151 tbl.229 (2012), available at /12s0229.pdf (statistic under the table titled, “Educational Attainment by Race and Hispanic Origin: 1970 to 2010”).