For those with criminal histories, a second look may be a second chance

For those with criminal histories, a second look may be a second chance

By Victoria Ni, Senior Attorney

An alarming government study predicts that 1 in 3 African-American men and 1 in 6 Hispanic men will spend time in prison during their lifetimes. For Caucasian men, the rate is 1 in 17. In 2010, 28 percent of all arrests involved African-Americans even though they comprise only 14 percent of the general population. In the same year, African-American men were sent to prison at a rate nearly seven times that of Caucasian men.

Meanwhile, some 92 percent of employers participating in a 2009 survey said they conducted criminal background checks on all or some of their job candidates. And an analysis of Craigslist by the National Employment Law Project found that many of the nation’s largest employers commonly advertise jobs as requiring some version of a “clean” criminal record or no convictions. For those who become entangled in the criminal justice system — a high proportion of whom are racial minorities — this makes it pretty tough to find a job.

If you believe that people can make mistakes, pay their debt to society and rehabilitate themselves, a blanket ban on hiring people with criminal records feels fundamentally unfair. These bans assume anyone with a criminal record is unfit for all jobs; they don’t take into account mitigating facts for individual job applicants, such as whether an arrest actually resulted in a conviction, how much time the person has stayed out of trouble, whether the nature of the particular offense bears any relationship to probable performance on the job, or whether the record itself is accurate. As the New York Times recently reported, even those whose who were wrongfully convicted and had their convictions overturned still find themselves “branded with a scarlet letter,” unable to pass background checks that unfairly block them from prospective employment.

Blanket bans on hiring those with criminal records also perpetuate a cycle of crime and poverty. They give rise to an ever-growing subclass of mostly minority individuals who are virtually unemployable, unable to support themselves, and more likely to resort to criminal behavior or substance abuse.

These bans are also probably illegal. At least ten states have adopted some sort of legislation that either (1) delays inquiries about criminal history by some employers until later in the hiring process, or (2) prohibits the disqualification of job applicants based solely on their criminal record unless the conviction is job-related — meaning that it relates to the functions of the particular job in question. For example, earlier this month, New York’s Attorney General announced that Quest Diagnostics, a giant in medical diagnostic testing, agreed to stop its policy of automatically disqualifying job applicants with a criminal history and to pay a $70,000 fine for violating New York law.

At the federal level, the Equal Employment Opportunity Commission has issued an enforcement guidance to tell employers that the use of criminal history in employment decisions may amount to illegal discrimination. Because criminal history is a pretty close proxy for race, the EEOC says policies that automatically screen out those with criminal histories could be seen to have a discriminatory effect on minority populations, such as African-Americans and Hispanics. According to the EEOC, such policies are illegal unless they can be shown to be job-related.

Employers should be giving job applicants with criminal histories a second look. Those that don’t, and that insist upon using blanket rules to crudely screen out unqualified candidates, may be violating the law and subject to a lawsuit.

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