Seventy million Americans have a criminal record, a shockingly high number that stems from high incarceration rates going back for decades, and that continue to exact a human cost even after an individual’s debt to society has been paid. Now, a prison reform movement embraced by such unlikely allies as the Koch brothers and the ACLU is pushing to “Ban the Box” on employment forms that applicants must check if they’ve had a misdemeanor or felony conviction, a mark that weeds them out before they even get in the door.
Seventeen states and the District of Columbia have already removed the box, as have mega-employers Target, Walmart, and Koch Industries. The movement, which was spearheaded by the National Employment Law Project, All of Us or None, and PICO National Network, together with hundreds of national and local advocacy groups, are putting the spotlight on the White House to make good on former Attorney General Eric Holder’s promise to make the federal government a “model employer” for the millions of Americans with an arrest record.
Declaring Wednesday, June 10, a “day of action,” this coalition, which includes organizations from the AFL-CIO to faith-based groups and concerned individuals, including actor Danny Glover, are urging everyone to email and call their elected representatives and use social media to popularize “Ban the Box.” The goal is to get President Obama to sign an executive order banning the box for federal contractors.
“You have to build the broad support to show this is something that requires the White House’s attention,” says Michelle Rodriguez, senior staff attorney with the National Employment Law Project (NELF). “It’s a big ask—only certain things rise to that level. We’re hoping this makes it.”
The first ban the box law passed in Hawaii in 1998, and in 2000, a group of previously incarcerated people in San Francisco calling themselves “All of Us or None” took up the banner. It was slow going until recently when the movement underwent a period of what Rodriguez calls “exponential growth” as more and more states signed on and over 100 cities and communities joined the effort.
This year alone, Georgia, Ohio, Virginia, and Vermont were added to the list. Last year, Illinois, Delaware, Nebraska, and New Jersey all passed ban the box laws, underscoring the geographical and political diversity of the movement.
Noting that Georgia is the first Southern state to implement a fair-hiring policy for applicants with criminal records, Republican Governor Nathan Deal said that his February executive order banning the box on state employment would increase the number of qualified applicants and make Georgia more attractive to business. If that seems counter-intuitive, it bears reminding that when you’re talking about a group of 70 million Americans, you’re talking about a hugely diverse group. Many have records that go back 10, 20, even 30 years.
When New Jersey Governor Chris Christie signed legislation last year banning the box in both state and private employment, he said it would make “a huge difference for folks who have paid their debts to society, who want to start their lives over again and are going to have an opportunity to do just that in our state.”
In a conference call on “fair chance hiring” reforms last week, Wade Henderson, president and CEO of The Leadership Conference Education Fund, commended Walmart and Target for stopping the pre-screening of applicants. “Certainly those industries wouldn’t adopt policies that would hurt their bottom line,” he said. “Surely the federal government can follow.”
A study that appeared last year in the American Journal of Criminal Justice on whether Hawaii’s ban the box law had reduced recidivism found that a criminal defendant prosecuted in Honolulu for a felony crime was 57 percent less likely to have a prior criminal conviction after the implementation of the law.
If people are able to find employment, the chances that they will return to jail go down substantially. But it’s not all rosy. Removing that first impediment doesn’t mean that an employer can’t decide against hiring an applicant later in the process when a background check reveals a criminal arrest.
A self-described reform advocate on the call moderated by Henderson said that it was her experience that as soon as an employer does a background check, “the applicant is flushed because of a felony conviction.” She wanted to know, “What can we do to convince these employers that ban the box is not the end of the work, and that they should not let conviction be a red flag?”
She was told that the EEOC (Equal Employment Opportunity Commission) has interpreted Title 7 of federal civil-rights law to require “individual assessment,” meaning the age of the offense, the nature of the offense, and evidence of rehabilitation, must be weighed by an employer.
To refuse to hire someone solely because they have a felony conviction is a violation of Title 7. That’s all to the good, the woman responded, but a member of her family has had seven white-collar jobs rescinded since February because of a felony, and these are major national corporations, she said.
“Someone is not getting the message through to their HR people,” said Maurice Emsellem with the National Employment Law Project. He told her she had “a beautiful legal case” if the failure to hire can be isolated to a criminal conviction that is unrelated to the job that is being sought.
Not wanting to lose sight of the fact that some major employers are voluntarily opening up their hiring practices, Henderson cautioned that the corporations “are not adversaries. They may be ignorant of what the law implies,” and may need convincing that “fair chance hiring” is good for their bottom line, and what’s good for business is good for politicians.