Get out of jail free? Preventing employment discrimination against people with criminal records using ban the box laws.

• Author: Weissert, Elizabeth P.
• Position: COMMENT

INTRODUCTION I. The Problem of Discrimination Against People with Criminal Records in Hiring A. The Prevalence and Negative Impacts of Employment Discrimination Against People with Criminal Records B. Employers' Motivations for Refusing to Hire Job Applicants with Criminal Records II. The Limitations of the Current Legal Framework Under Title VII for Preventing Employment Discrimination Against People with Criminal Records A. Equal Employment Opportunity Commission (EEOC) Enforcement of Title VII to Protect People with Criminal Records Under the Disparate Impact Doctrine B. The EEOC's 2012 Enforcement Guidelines for Title VII III. The Wide Variety of Ban the Box Ordinances in Jurisdictions Across the United States A. The Emergence of the Ban the Box Movement and the Growing Popularity of Ban the Box Laws B. Differing Elements of Various Ban the Box Laws IV. A Model Ban the Box Law A. Elements of a Model Law 1. Scope of Employees Covered 2. Earliest Permitted Consideration 3. Factors that Must Be Considered by Employers 4. Enforcement B. Proposed Model Ban the Box Law CONCLUSION INTRODUCTION

Have you ever been arrested or convicted of a crime? Although this question may seem innocuous to job applicants who do not have to answer in the affirmative, it presents a major stumbling block for people with criminal records seeking employment.! Employers across the country are increasingly performing criminal background checks on job applicants and screening out those applicants with criminal records. (2) This form of hiring discrimination has an impact on an increasingly large segment of the workforce. As of August 2014, an estimated seventy million adults in the United States had arrest or conviction records that make it difficult to find work. (3) Pervasive employment discrimination on the basis of criminal history is troubling because it both increases rates of recidivism (4) and has a disparate impact on African American and Hispanic men. (5) Unless it is legally limited, this practice will continue to grow as personal information--including criminal history--becomes easier and cheaper to access online. (6)

Legal scholars have advocated for a number of different approaches to combat this form of discrimination, including Equal Employment Opportunity Commission (EEOC) enforcement under Title VII of the Civil Rights Act of 1964, (7) an antidiscrimination statute making criminal history a protected characteristic, (8) a redemptive-focused approach such as expungement or sealing of criminal records, (9) and Ban the Box laws. (10) Although EEOC enforcement under Title VII has had some success in protecting people with criminal records from employment discrimination, it is inherently limited by the nature of the EEOC and the legal doctrine of disparate impact. (11) The EEOC has also taken action to discourage employment discrimination against ex-offenders by issuing new enforcement guidelines for Title VII; however, these guidelines do not have the force of law. (12) Increased enforcement under the existing statutory scheme of Title VII is an inherently limited means of addressing the problem of hiring discrimination practiced against people with criminal records.

The existing legal framework for preventing employment discrimination on the basis of criminal history leaves gaps in protection. The Ban the Box movement, which emerged from the grassroots community of formerly incarcerated people, is a means of bridging these gaps in legal protection. (13) Although the specific provisions of Ban the Box laws vary across jurisdictions, they are all premised on the belief that questions about criminal history should be banned from initial job applications. (14) Over the last ten years, the Ban the Box movement has become increasingly widespread; as of December 2015, approximately ninety cities and municipalities across the country and twenty-one states have enacted some form of Ban the Box legislation. (15) A comparison of the country's many Ban the Box laws reveals several key differences, including which employers are restricted, at what point in the application process employers may inquire into an applicant's criminal history, whether employers may consider criminal history, and the means by which the laws are enforced.

Some legal scholars have argued that Ban the Box laws are inherently ineffective in preventing employment discrimination against people with criminal records. (16) It is true that certain provisions in many of the existing Ban the Box laws limit their efficacy. For example, many states' policies (including those of California) apply only to public employers. (17) However, a model Ban the Box law can be crafted by synthesizing the most effective elements of existing laws. When adopted at the city or state level, this model Ban the Box law would be a highly effective means of providing legal protection for job applicants with criminal records.

Part I of this Comment describes the problem of employment discrimination against people with criminal records, exploring the prevalence of this practice, some of the reasons and motivations underlying it, and its consequences for job applicants with criminal records, especially the troubling disparate impact on African American and Hispanic men. Part II examines the limitations in the existing legal framework for preventing employment discrimination against people with criminal records under Title VII and the disparate impact doctrine. Part III details the Ban the Box movement, and compares the provisions of various versions of Ban the Box laws that have been enacted. Part IV synthesizes the most effective elements of enacted Ban the Box laws to propose a model Ban the Box law. Finally, the Comment concludes with an argument that this model Ban the Box law would provide a highly effective means of protecting job applicants with criminal records from employment discrimination.

1. The Problem of Discrimination Against People with Criminal Records in Hiring

   1. The Prevalence and Negative Impacts of Employment Discrimination Against People with Criminal Records

      Hiring discrimination on the basis of criminal history is a pervasive problem that continues to grow at an alarming rate, due to the simultaneous increases in incarceration in the United States and the amount of personal information available online. The United States incarcerates its citizens at a greater rate than any other nation in the worlds In this climate, "[a]rrest, conviction, and incarceration are becoming increasingly common life events." (19) Approximately sixteen million adults in the United States are considered either felons or ex-felons. (20) Due to these increasing rates of arrest and incarceration, an estimated seventy million American adults have criminal records that make it difficult for them to find employment. (21)

      People with criminal records find it particularly difficult to secure employment because employers increasingly use criminal background checks to screen out job applicants. The percentage of employers performing criminal background checks has increased dramatically as these checks have become easier and cheaper to perform. (22) In one recent study, more than 90% of employers reported using criminal background checks in making their hiring decisions. (23) Because the information is so readily available, job applicants with criminal records are placed at a serious disadvantage. Some employers completely screen out applicants with criminal records while others are simply less likely to hire people with criminal records because they hold negative stereotypes about people who have committed or have been accused of committing crimes. (24) The cumulative effect of high incarceration rates and widespread criminal background checks on job applicants is pervasive employment discrimination against a large and growing segment of the general population.

      Employment discrimination against people with criminal records injures vulnerable populations by increasing recidivism. When a person with a criminal record is denied equal opportunities for employment, it becomes more difficult for him or her to stay out of trouble with the law. Meaningful employment is vital to people reentering society from prison because people with criminal records who establish a stable working environment are much less likely to reoffend. (25)

      However, pervasive employment discrimination on the basis of criminal records means that many people with criminal records "remain marginalized from the work force and at greater risk of returning to crime." (26) Employers who discriminate in hiring on the basis of criminal records deny employment opportunities to people who are most sorely in need of stable employment.

      Employment discrimination against people with criminal records further injures vulnerable populations because it disparately impacts African American and Hispanic men. Minority men are incarcerated at higher rates than White men. The EEOC found that one in three Black men will serve time in prison in their lifetimes as compared to one in six Hispanic men and only one in seventeen White men. (27) Further, minority men are incarcerated at higher rates than White men for the same crimes. (28) For instance, "a Black person is 3.73 times more likely to be arrested for marijuana possession than a White person," even though Black and White people "use marijuana at similar rates." (29) Increased incarceration rates of minority men mean that facially neutral hiring policies that screen out all applicants with criminal records are likely to screen out more minority men than any other group.

      This disparate impact is heightened when criminal-record bias is compounded by racism. A criminal record does not have the same effect on the success of a White man's job application as it does on the success of a Black or Hispanic man's. For Black people with criminal records, the stigma of incarceration "is compounded by the...