Do ban-the-box policies increase racial discrimination in hiring?

Update: The National Employment Law Project has responded to these studies with a critique that we cover here.

Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities.  A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.

Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:

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Former Obama officials advocate against FBI checks by (some) employers

Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators.  His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.

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Former AG says no FBI screens for Uber and Lyft drivers

On June 2, former Attorney General Eric Holder sent a letter to the Chicago City Council asking it not to make Uber and Lyft do FBI background checks on their drivers as a condition of operating within the metropollitan area.  The ride-sharing companies have argued that they should be permitted to vet their own employees.  Mr. Holder’s points out that FBI records are incomplete and thus misleading, and that they are intended for law enforcement purposes, not to screen applicants for employment.

Mr. Holder, whose tenure at the Justice Department was notable for efforts to highlight the problems faced by people returning to the community from prison, then argues more broadly that perfoming background checks on applicants for employment disadvantages communities of color.  In this regard, he notes that 80% of African-American men of working age in Chicago have a criminal record, and only half of them are employed. (This seems to present another one of those “ampersand” situations that so frequently arise these days in the criminal law context.). He concludes by stating that screening employees through FBI record checks is “both unwise and unfair.”

Mr. Holder’s letter does not indicate the context in which it is written, or whether He represents an interested party — though it is written on his law firm stationery so it seems fair to assume he is writing in behalf of either Uber or Lyft, or perhaps both.

Chicago would not be the first city to provoke controversy by requiring ride-sharing companies to perform fingerprint-based FBI background checks on their employees and applicants for employment.  For example, Uber and Lyft pulled out of Austin, Texas, after the city council voted to impose the same background check requirements on ride-share drivers as are required for taxi drivers.  At the same time, reports of driver attacks on ride-sharing passengers raise public concern about the effectiveness of self-regulation. It seems clear that we have not heard the last of this issue.

Study shows certificates work to create job opportunities

A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record.  Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE.

Although the study’s findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio’s CQE, and by inference of similar certificate schemes in other jurisdictions.  Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency.  The abstract follows:

Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer.

 

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Vermont becomes 8th state to ban the box in private employment

Cherry_Blossoms_and_Washington_MonumentStarting next summer, private as well as public employers in Vermont will no longer be permitted to ask about a job applicant’s criminal history on an initial employment application.  The change comes with the enactment of House Bill 261, which Governor Peter Shumlin signed into law yesterday.  With the law’s enactment, Vermont becomes just the eighth state to ban the box in private employment.  When CCRC Board Chair Rich Cassidy testified in favor of the provision before the Vermont legislature, he emphasized the importance of extending the prohibition to private employers.

In a signing ceremony, Governor Shumlin, who last year issued an executive order banning the box in public employment, had the following to say about the new law’s significance:

Too many Vermonters with criminal records are unable to successfully re-enter their communities due to lack of employment. Banning the box is all about breaking down barriers and giving those Vermonters who have paid their debt to society a fair chance at finding a good job. Nobody wins when Vermonters are trapped in a cycle of unemployment and incarceration.

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Will Prez Obama make federal contractors ban the box? [Update: Not now.]

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Updated April 29:

According to comments late this week from senior White House adviser Valerie Jarrett, the President remains inclined to defer to Congress when it comes to making federal contractors ban the box:

Asked whether there was consideration of whether to take action to require federal contractors to “ban the box,” Jarrett said, “The president has supported federal legislation that would ban the box for federal contractors. He thinks that’s the best approach.”

The legislation in question appears to have stalled, as noted by its sponsor Rep. Elijah Cummings.  (In a tweet, Jarrett pointed advocates to a 2013 directive of the Office of Federal Contract Compliance reminding contractors of their obligation to comply with the EEOC guidance on criminal records.)

On the other hand, on Friday the administration made good on its November promise to require federal agencies to ban the box, when OPM announced a proposed rule requiring federal agencies to postpone inquiry into an applicant’s criminal record until after a conditional offer of employment has been made.

Also, marking the end of National Reentry Week, the President formally established the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to “the rehabilitation and reintegration of individuals returning to their communities from prisons and jails.”  Originally convened by the Attorney General in 2011, the President’s action ensures that the Council will continue past the end of his Administration.

Original post from April 26:

As the White House inaugural National Reentry Week begins, advocacy organizations and Members of Congress are again calling on President Obama to use his executive authority to “ban the box” in federal contractor hiring, just as he announced he would do in federal agency hiring last November.

The call comes on the heels of a number of steps the Obama Administration has taken to improve the employment prospects of those with criminal histories, including the creation of the Fair Chance Business Pledge earlier this month.  Last fall, the President announced a number of additional reentry initiatives, including establishment of a Clean Slate Clearinghouse.  The President’s overall record on second-chance issues has been commendable, but he will have to move quickly to maximize his administration’s impact before the end of his term.

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State licensing laws unfairly restrict opportunities for people with criminal records

States are falling short when it comes to making occupational licensing opportunities available to people with criminal records. This is according to a report released this week by the National Employment Law Project (NELP).  Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records examines the licensing laws of 40 states, and grades each state based on a number of criteria designed to assess how effective the law is at creating licensing opportunities for people with criminal records.  The report is a powerful advocacy piece demonstrating the need for nation-wide reform of licensing laws, though it bears noting that its limited scope may distort the bigger picture in some states.

Recent studies and policy discussions focusing on the difficulty people with criminal records have finding employment tend to ignore the fact that nearly 30% of American jobs require state licensure or certification — which is frequently denied based on a conviction.  The National Inventory of Collateral Consequences (NICCC) shows that there are over 25,000 formal occupational and business licensing restrictions imposed nationwide at the state or federal level.  Many of these restrictions apply regardless of a crime’s relationship to a particular license or the time since conviction.  Across the nation, over 10,000 of these restrictions are mandatory and apply automatically, forcing licensing bodies to reject applicants with certain records regardless of their qualifications or evidence of their rehabilitation.

Municipal and county ordinances also regulate employment and business opportunities, including such important entry-level employment as taxi driver and street vendor, though ordinances are not catalogued in the NICCC and so were not included in the NELP report. Read more

“Get to Work or Go to Jail”

Get-to-Work-or-Go-To-Final-copyA new report from the UCLA Labor Center with the snappy title of  “Get To Work or Go To Jail” describes how the criminal justice system may compromise employment opportunities in more ways than one, placing workers on community supervision or in debt at the mercy of employers.  Noah Zatz of the UCLA Law faculty, one of the report’s co-authors, summarizes the report’s conclusions as follows:

When many people consider work and the criminal justice system, they commonly focus on how difficult it is for people coming out of jail to find work. “Get to Work or Go To Jail: Workplace Rights Under Threat” goes further by exploring how the criminal justice system can also lock workers into bad jobs. Workers on probation or parole, facing criminal justice debt, or owing child support face a disturbing threat: get to work or go to jail. Because these workers face incarceration for being unemployed, the report finds that they cannot afford to refuse a job, quit a job, or to challenge their employers- and they can even be forced to work for free. This report identifies how the criminal justice system endows employers with this power.

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“A Federal Judge’s New Model for Forgiveness”

New York Times
By

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Judge Gleeson issues a “federal certificate of rehabilitation”

In his final week on the bench, in an opinion that may in time prove among his most influential, U.S. District Judge John Gleeson issued a “certificate of rehabilitation” to a woman he had sentenced 13 years before.  See Jane Doe v. United States, No. 15-MC-1174 (E.D.N.Y., March 7, 2016) (Jane Doe II).  The opinion breaks new ground in holding that federal courts have authority to mitigate the adverse effects of a criminal record short of complete expungement.  Along the way, it confirms that a district court may use its inherent equitable powers to expunge convictions in “extreme circumstances,” an issue now on appeal to the Second Circuit in Judge Gleeson’s earlier expungement case.  (Jane Doe I has been calendared for argument on April 7.)  The opinion also finds a role for federal probation to play, including under New York State’s “robust” certificate system, which lifts mandatory state law bars to employment and other opportunities.  It does all of this in a manner that should make it hard for the government to appeal, since “this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.”    

Joe Palazzolo at the Wall Street Journal blog noted that  

More than a dozen states and the District of Columbia issue certificates to certain ex-offenders who have shown their days of crime are behind them, usually by remaining offense-free for a long stretch. . . . . 

There is no equivalent federal certificate. So Judge Gleeson invented his own.

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