Should a criminal record ruin a career?

March 27, 2015 CCRC Staff

The Atlantic has published an excellent article about the permanently disabling effects of a criminal record, by two attorneys at the East Bay Community Law Center (Oakland, CA), Sarah Crowley and Alex Bender (an Equal Justice Works AmeriCorps Fellow). Haunted by the Past: A Criminal Record Shouldn’t Ruin a Career, March 25, 2015. The authors argue, based on their experiences in their practice, that “too many applicants, particularly people of color, are being denied jobs based on background checks that are irrelevant or even inaccurate.” They describe the sources of inaccuracy and other unreliability in criminal background checks, even ones based on fingerprinting. But then they focus on the real problem, which is that over-reliance on background checks “inevitably screens out qualified, trustworthy job applicants.”

They tell the story of one woman whose dated misdemeanor convictions deprived a California group home of a valuable employee:

Take, for example, the case of Felicia Green . . . who applied to work as a caregiver in a group home for young people and their families. In terms of experience and training, she was a model candidate: She worked for ten years as a residential advisor for a program administered by the U.S. Department of Labor. Green had stellar references, and also recently became licensed as a Covered California enrollment counselor.

Unfortunately, Green’s criminal background check revealed two old misdemeanor convictions. Her caregiver job application process, which had been going smoothly, came to a grinding halt. Green’s first conviction, [was] a DUI from more than two decades ago, . . . . The second conviction [for welfare fraud] occurred seventeen years ago [when] she received an overpayment that she neglected to report . . . .

The relatively recent ubiquity of background checks has made it so that criminal convictions function as a modern-day scarlet letter, nearly impossible to overcome. For Green, the two decades-old convictions were her sole encounters with the criminal-justice system. But in the context of her job application, those convictions might as well have happened yesterday. The past two decades of staying out of trouble and being gainfully employed couldn’t prevent her from being flagged as a hiring risk. Even though the group home expressed interest in hiring her, bureaucratic hurdles prevented them from doing so once her convictions came to light, so in the end, Green didn’t get the job.

The real unfairness for Felicia Green arose not from the background check, which seems to have been accurate, but from the employer’s willingness to rely exclusively on it, daunted by the prospect of tackling “bureaucratic hurdles.” Most employers take the path of least resistance and least apparent risk, which may result in loss for all concerned. The authors urge employers and occupational licensing agencies to adopt

a smarter, more holistic approach to the screening process that carefully considers the information in criminal background checks as one factor among many. If an applicant has a criminal history, it’s not necessary to reject them automatically. Take into account the seriousness of the conviction, how long ago it happened, and whether it actually has anything to do with the job in question.

The challenge of developing and enforcing standards for discretionary decision-making is the next frontier in dealing with collateral consequences.