Friday, January 24, 2014

“Ban the Box” Laws Seek to Give Returning Citizens a Second Chance

Meet John Doe.  He has just returned home from serving time in prison for a criminal offense that occurred during his youth.  He has learned a lot and he is ready to prove it to his family and community.  He is ready to start over, obtain employment, and financial stability.  He applies for jobs that he is qualified for and honestly discloses his conviction when asked on hiring forms.  Still, he cannot get a break; not even an interview.  Almost always his application is tossed aside when employers realize that he has a criminal history.

John, though fictional, is symbolic of the thousands of Americans that are eager to add to the economy but are barred from employment based on criminal background checks that reveal arrest and conviction histories.  A society that claims to value rehabilitation and second chances, refuses to extend these mercies to this growing population.  According to a National Employment Law Project report, nearly 65 million Americans have a criminal record that could be uncovered by a background check.  A study by the American Academy of Political and Social Science says that criminal records can reduce the likelihood of a job callback or offer by at least fifty percent.  As a result, organizations like the U.S. Equal Employment Opportunity Commission (EEOC) and the “Ban the Box” campaign, created to challenge stereotypes and promote choosing job applicants based on skills and qualifications; not past convictions, have ignited a movement centered on reconciling a very broken system.  Through legislation and protest, advocates fight for fairness and equality in American hiring practices. 

EEOC Guidance
On April 25, 2012, the EEOC raised this civil rights issue by producing a new Enforcement Guidance that has become a catalyst for states and cities around the country to adopt “ban the box” legislation.  The Guidance was created to update the EEOC’s documents regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq.  The “ban the box” statutes that followed extended the suggested best practices in an effort to restore fairness and opportunity in the hiring process.  Title VII of the civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex or national origin.

Racial Impact and Public Policy Concerns
Arrest and incarceration rates are particularly high for African-American and Hispanic men making those populations the hardest hit by criminal background checks in the hiring process.  To determine the racial impact of such practices, the EEOC compiled a number of hypothetical situations to illustrate the issue.  One concern is hiring rules that allow for the hiring of some applicants with criminal histories and not others.  In those instances, race becomes one of the dominant factors taken into consideration. One such hypothetical depicts two applicants, one white and one black.  Both candidates apply for employment.  Both are educated and qualified for the position and both have pled guilty to possessing and distributing marijuana as teenagers.  Neither has had any contact with the criminal justice system subsequent their guilty pleas.  When applying for the position, both applicants note their conviction on intake forms.  Later, the employer eliminates the black applicant because he cannot afford to refer “drug dealer types” to jobs.  Conversely, the application of the white candidate is allowed to proceed to the next level of the hiring process because his conviction is considered a mistake made during his youth. This hypothetical is just one of the many ways stereotypes can be used in hiring as a result of criminal background checks.  Examples of bias because of national origin are also outlined in the Guidance. 

Ban the Box Laws Across the Country
Ban the box laws are not one size fits all.  Different legislators have tailored the law to fit the needs of the communities in which they serve.  In Philadelphia, employers are prohibited from doing any criminal background checks of potential employees.  Hawaii extends its ban the box laws to both public and private sectors prohibiting employers from considering any convictions or arrests that are older than ten years.  In Newark, federal and state governments are allowed to use criminal background checks for positions that are considered “sensitive”.  However, no real guidance or definition is given for what deems a position “sensitive” in these contexts.  Cities like Atlantic City allow employers to conduct criminal background checks after an applicant is offered a conditional offer of employment with the idea that such a process will allow applicants to be chosen based on merit and abilities instead of being eliminated based on criminal history.

Companies have also joined the ban the box campaign.  In New Jersey, nine of the largest employers including Wal-Mark, Johnson & Johnson, The Home Depot, CVS, Macy’s, Prudential, Citigroup, Comcast and J.C. Penny no longer ask for criminal histories in initial applications.  Target Corporation also removed questions about criminal history from their applications in Minnesota and throughout the country.

Still, everyone is not so pleased with the “ban the box laws”.  Opponents of the law believe that ban the box laws do not actually help those it seeks to relieve.  Instead, some argue that the laws create distrust by employers and may end in the same result; however later in the game.  Those hired on a conditional basis can still be let go once criminal background checks reveal a criminal record.  Conversely, proponents of the law find that it is a great balance to an unjust system giving post convicts the ability to be interviewed and offered employment prior to the determination of a criminal history.

As states and cities continue to enact new “ban the box” legislation, employers are encouraged to update their hiring practices and notify all current and potential employees of the changes to ensure transparency with the hope that everyone, regardless of criminal background, will have a fair and honest opportunity to gain employment and contribute to society.

Impact on Practitioners
Much of what appears on a criminal background check is a result of charges sought and pleas taken.  Moving forward; practitioners from both sides of the aisle can help returning citizens get a second chance by being proactive in the charging stage.  Prosecutors should take into account using their discretion to bring charges that fit the crimes committed but do not overly punish defendants.  This act alone could prevent some defendants from harsh charges that employers would be reluctant to accept in the hiring process.  Similarly, criminal defense attorneys should take time to explain to defendants the repercussions of accepting certain pleas, warning them of the adverse affects certain convictions may have on their ability to return to society and gain employment following any time served.

It is also important for advocates to diligently ensure that criminal background checks are complete and accurate.  Recent studies have found that many state and federal criminal record databases have incomplete criminal records.  Some records have not recorded final dispositions for a significant number of arrests.  This is especially an issue where defendants are acquitted yet face limited job opportunities because the FBI background checks fail to report the final outcome of the law.  Our October Article: Inaccurate Background Checks: An Expunction of Job Opportunities, encouraged practitioners to be aware of expunction rules in their jurisdictions and pursue expunction of clients' records to hopefully prevent inaccurate and adverse effects in future employment opportunities.

Returning citizens that have served their time should be given the opportunity to contribute to their communities and society at large.  Promoting employment practices that challenge companies to pick candidates based on skills and ability instead of past criminal history is a win-win for the applicant, the economy, and the criminal justice system at large.

Erica R. McKinney
Junior Staffer, Criminal Law Practitioner

Image by Johannes Rössel, via Wikimedia Commons.


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