Last week, President Barack Obama announced that he would take executive action to prohibit federal employers from asking about a job applicant’s criminal history in the initial stages of the hiring process. The President on the Re-entry Process of Formerly Incarcerated Americans, The White House (2015). This measure, often referred to as “banning the box” in reference to the checkbox on employment applications, is meant to reduce the obstacles preventing former prisoners from reintegrating into society. While President Obama’s actions only ban the box for federal employees, he made the announcement in Newark, New Jersey, where Governor and Republican presidential candidate Chris Christie signed a law banning the box for private and public employers last year. Christina O'Connell, Ban the Box, 83 Fordham Law Review, 2810 (2015).
Recognizing the bipartisan support for banning the box, Congress should act now to limit consideration of criminal records in all hiring decisions because the practice disproportionately impacts people of color, increases the rate of recidivism and harms society more than it serves any business necessity.
65 million Americans have criminal records. Id. These people, a full fifth of the population, face significant challenges beyond the official punishments that follow them for the rest of their lives. Perhaps the greatest challenge is in finding employment. Most private companies and government employers use criminal background checks in their hiring processes and some laws completely disqualify ex-offenders from certain jobs. Id. The racial disparity in arrest, conviction and incarceration rates is borne out in the raw data from government policy reports and compounded by scholarship on employment discrimination. The negative impact on recidivism is well documented, but some attorneys representing major employers cite various business necessities of screening convicted criminals from consideration in hiring. However, for the reasons described above and many others, there is an overarching societal necessity in giving those who exit the criminal justice system a second chance.
While some states have adopted ban the box laws, no federal statute currently restricts the practice for all employers. Henry, J., Ban the Box to Promote Ex-Offender Employment, 755 Criminology & Pub. Pol'y (2007). The Equal Employment Opportunity Commission (EEOC), established by the 1964 Civil Rights Act, is the federal agency tasked with combating workplace discrimination. EEOC Enforcement Guidance 915.002 (2012). The EEOC plainly states in its 2012 Enforcement Guidance, “An arrest record is not grounds for exclusion” from the hiring process. Id. However, the EEOC allows consideration of convictions because that record “will usually serve as sufficient evidence that a person engaged in a particular conduct, given the procedural safeguards associated with trials and guilty pleas. Id. The reason for the policy against using arrest records in the hiring process is because of racial differences in arrest rates, which would disproportionately harm African-American and Hispanic job applicants. Id.
However, the racial disparity in arrest rates to not disappear in the successive stages of the criminal justice system. Conviction and incarceration rates are higher for African-Americans and Hispanics than for whites. Report to the UN Human Rights Committee, The Sent'g Project (2013). African-Americans are 12 percent of the adult population, but comprise 38 percent of convicted felons. Id. For violent crimes like murder, a majority of those convicted are black, an especially stark overrepresentation. Id. African-American males are 6 times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males. Id. This data indicates that the consideration of conviction rates, like arrest rates, disproportionately harms the employment prospects of people of color. Because of this, the EEOC should be empowered by new legislation to restrict employers from considering not just arrest rates, but criminal records as a whole.
While this data clearly shows a racial disparity, it does not tell the full story of just how harmful the practice is to people of color. Professor Devah Pager of Harvard’s Kennedy School of Government conducted a field study that further demonstrates racial discrimination in employer considerations of criminality. Henry, J., Ban the Box to Promote Ex-Offender Employment, 755 Criminology & Pub. Pol'y (2007). Pager sent job applications to employers from students with identical attributes and experience, except for their criminal records. Id. Employers expressed interest in 37 percent of white applicants with no criminal records and 17 percent of whites with criminal records. Id. Among black job-seekers, employers showed interest in 14 percent of applicants without a criminal record and only 5 percent of applicants with a criminal record. Id. As previously established, there is a racial disparity in the rates of arrest, conviction and incarceration among blacks and whites. This scholarship shows that even if that disparity is removed entirely, employers discriminate against black job-seekers with a criminal record and favor white applicants with a criminal record. A separate Justice Department policy study found similar results, concluding, “The negative effect of a criminal record was substantially larger for black applicants.” Neighborhoods, Recidivism and Employment Among Returning Prisoners. (The Nat'l Inst. of Justice 2015). The practice does not just have an incidental disparate impact on people of color, but enables active racial discrimination and should be restricted by law.
In the absence of legislative action to ban the box, the practice could be challenged under disparate impact liability. In Connecticut v. Teal, the Supreme Court ruled that the relevant issue in determining disparate impact is “whether the policy or practice deprives a disproportionate number of Title VII-protected individuals of employment opportunities,” even if the resulting workforce of a company is racially balanced. Connecticut v. Teal 433 U.S. 330 (1977). Given the abundance of data to suggest the practice has or predictably will have a discriminatory effect, public and private employers could be susceptible to disparate impact claims if they do not ban the box.
There are, of course, major issues the ban the box movement seeks to redress that affect ex-offenders of every race, such as chronic unemployment and recidivism. 60 to 75 percent of Americans cannot find a job in their first year after being released from prison, in large part due to the widespread use of criminal background checks. 83 Fordham L. Rev. 2810. Two-thirds of companies screen applicants for criminal records, mostly during the initial phase of hiring. Id. This means that most ex-offenders never get a call back to discuss mitigating circumstances such as their personal rehabilitation, good behavior and other positive steps toward reintegration to society. In 2010, Boston put in place a law that only allows background checks to be administered during the final phase of hiring, after finalists have been chosen. Id. If the check reveals a disqualifying conviction, the applicant can then meet with human resources to discuss the issue in-depth. Id.
Congress should act to ban the box beyond federal employment applications by passing a statute like Boston’s because it would gives an ex-offender the fair chance to be judged on his or her merits when seeking work. Without such a policy, ex-offenders are discouraged from playing by the rules and are much more likely to reoffend. Id. The inability to find legal work places a financial strain on an individual and encourages generating income by other, potentially criminal means. This is just one of many reasons that employment is the single greatest factor reducing the risk of all recidivism outcomes. Id. Simply put, banning the box would reduce the number of past offenders who return the criminal justice system, eliminating huge societal costs in dollars and lost opportunities.
Kevin White, a partner at the law firm Hunton & Williams LLP, which represents retail clients in EEOC investigations, takes a different approach. Instead of arguing for expanded federal oversight of discriminatory hiring practices, he suggests that the EEOC is currently going too far in its regulation of employers. Terrence Connor and Kevin White, A Critique of the EEOC Guidance, 43 Seton Hall L. Rev. 997 (2013). Employers, he argue, have a legitimate business necessity in barring ex-cons from employment because they could present risks to the hiring organization. Id. White cites criminological studies to demonstrate that “nothing predicts future criminal activity more accurately than a history of past criminal activity.” Id. While White uses this evidence to advocate against additional hiring restrictions, he ignores the fact that the recidivism predicted by criminologists is a direct result of insufficient hiring restrictions. As previously noted, barring ex-offenders from employment only increases the likelihood of reoffense.
Another business necessity the practice serves, White argues, is that it avoids the “cost or burdens of a proposed alternative,” such as Boston’s policy that mandates additional review of applicants with criminal records. Id. Screening out applicants with criminal records may cut a few costs for businesses, but it shifts those burdens and costs to society by increasing recidivism and straining the families of the unemployed ex-offenders. In that way, the practice not only shifts the burden and costs from businesses to society, but also magnifies them several times over.
The racial disparity in arrests, convictions and incarceration alone should be enough to limit considering the criminal history of job applicants. However, the compounding effect of employers disfavoring black applicants with criminal records creates an even greater impetus for change. The cost of reviewing some additional job applications is dwarfed by the costs mass incarceration puts on society in terms of recidivism, lost opportunities and the disenfranchisement of millions of Americans who just want to work. It is time for Congress to pass a federal ban the box law to expand the policies of Governor Christie and President Obama and begin the process of reforming our broken criminal justice system.
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