A report released yesterday by National Employment Law Project (NELP) confirms that many companies are instituting blanket bans on hiring people with criminal records, including those with misdemeanors.  Creating what is an public safety issue and, if reforms are not successful, driving a wedge into the American people.  The only alternative will be a separate economy.  Will it be Separate But Unequal yet again?

As noted in the NELP report, the Equal Employment Opportunity Center has stated that “an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII.” Thus, blanket hiring prohibitions of the type documented in this report violate this fundamental mandate.

A few weeks ago, some representatives of the business community in Rhode Island testified in opposition of a bill that would remove the Conviction question from job applications; they stated that many are moving towards a “Better Safe Than Sorry” policy.  They fear that an ‘Ex-Con Gone Bad’ is a sure way to invite lawsuits, because they “should have known they might do something bad.”  Ironically, it is the blanket policies that are the surest way to get sued for discrimination.

To the credit of those same business community representatives, including one from the Providence Chamber of Commerce, they recognize that we have a problem on our hands and they sounded amenable to eliminating the Conviction Question (i.e. Ban the Box), but were leery of any reporting requirements and follow up with an un-hired applicant.  An amended bill in Rhode Island (H 5101) is working its way through the House this week, and a hearing is expected in the Senate over the coming month.  (Sign the Petition HERE).

If overall reforms prove unsuccessful, coordinated campaigns against the likes of Lowes, Bank of America, ManPower, and Radio Shack (for example) might prove beneficial for their competitors in the marketplace.

It is not enough for politicians and service providers to implement programs to try and help convicted people find work.  They need to FIRST remove the barriers.  People need to eat, and WILL find someway to do that- legally, criminally, or as an inmate.  As U.S. Secretary of Labor Hilda Solis recently said, “Stable employment helps ex-offenders stay out of the legal system. Focusing on that end is the right thing to do for these individuals, and it makes sense for local communities and our economy as a whole.”  Those policy people need to focus their efforts on eliminating barriers, lest their efforts result in further bloating the Prison Industrial Complex- evidenced by the amount of “Re-entry” dollars that are sent to the prisons, as if their policies and staffs do not have a compromised position.

It is a myth that “once bad, always bad.”  As the NELP report points out, “a major study of people with felony convictions found that 18-year-olds arrested for burglary had the same risk of being arrested as same-aged individuals with no record after 3.8 years had passed since the first arrest (for aggravated assault it was 4.3 years, and for robbery it was 7.7 years).19 If the individual was arrested initially for robbery at age 20 instead of at age 18, then it takes the person three fewer years to have the same arrest rate as a non-offender.”

One factor that is often overlooked is the presence of a Dismissed Charge, or an Arrest, on one’s criminal record.  For many, it creates a presumption of guilt.  This overlooks the fact that the Conviction Machine is so powerful, that even the innocent are often trampled.  For some, it confirms in their mind that this person is where the cops are… and cops only go where the criminals are.  That mentality overlooks that the police have militarized entire communities, particularly communities of color.  I would argue that if you put 500 police officers in the wealthiest town in America, eventually kids would start getting busted for weed at alarming rates; adults would be getting pulled over; one good drug bust will lead to major task forces… and on and on.

A recently dismissed charge for someone with a legitimate criminal record will destroy the credibility that may have taken decades to rebuild.  People have a hard enough time carrying the weight of the things they DID do; they don’t need the added burden of the things they DID NOT do.

The NELP report highlights some current lawsuits employers, activists, and others should be aware of, going after the hiring policies of Accenture, First Transit, Burlington Northern Santa Fe Railroad, and the U.S. Census Bureau.

It is important to know that companies like Choicepoint (conducting 10% of all checks nationwide) develop online application processes that automatically dismiss those who “check the box.”  This includes Radio Shack, and ABM Industries, who reached settlements with NY  Gov. Andrew Cuomo (former Attorney General).  Meanwhile in Rhode Island, Gov. Lincoln Chaffee supported “Ban the Box” while on the campaign trail, while A.G. Peter Kilmartin is opposed to the reforms “in both theory and practice.”  Considering the relationship between employment and public safety, it appears that the RI Attorney General has a draconian view on the matter.  He recently stated, “you can’t put a price on public safety.”  But actually, Mr. Kilmartin, you can.  Check with the House Finance Committee and the Governor’s budget.  Lock ‘Em All Up, comes with a cost.  His own prosecutors cannot keep up with the current caseload, and he would push for more.

The NELP report studies the policies of job postings on Craigslist throughout the nation, and also a flurry of lawsuits against the mass of employers who violate Fair Credit Reporting Act (FCRA) that grants an applicant the opportunity to confront and challenge their criminal record.  Ironically, this piece of the Rhode Island legislation  generated the most opposition.  But if the companies are complying with federal law… what’s the problem?

In conclusion, the report details four recommendations:

ONE: The federal government should aggressively enforce civil rights and consumer protections that apply to criminal background checks for employment in the public and private sectors.

TWO: The federal government should adopt fair hiring policies regulating federal employment and contracting that serve as a model for all employers.

THREE: State and local governments should certify that their hiring policies fully comply with federal civil rights standards and launch employer outreach and education campaigns.

FOUR: The employer community, together with Craigslist, should play a leadership role in raising the profile of this critical issue and promoting best practices that properly balance the mutual interest of workers and employers in fairer and more accurate criminal background checks for employment.

The courtroom has always been a battlefield for American civil rights.  Anyone who believes this battle ended in 1969 has not been paying attention.

Related Articles

• Latest “Ban the Box” Battleground: RI on Tuesday. (unprison.wordpress.com)
• Ex-offenders hope Philadelphia passes ‘ban the box’ bill this week (philly.com)
• Seattle wants to protect ex-criminals from housing, job discrimination (seattlepi.com)
• Unemployed Need Not Apply (theroot.com)