OCCUPATIONAL LICENSING AS A BARRIER FOR PEOPLE WITH CRIMINAL RECORDS: PROPOSALS TO IMPROVE ANTI-DISCRIMINATION LAW TO ADDRESS ADVERSE EMPLOYMENT IMPACTS FROM THE CRIMINAL LEGAL SYSTEM.
Introduction 190 I. Occupational Licensure and Problems for People with Criminal Histories 195 A. Occupational Licensure 195 i. What is Occupational Licensure? 195 ii. Marked Increase in Licensure Since the 1950s 197 B. Specific Issues People with Criminal Records Face with Regards to Occupational Licensure 198 i. "Good Moral Character" Component and Blanket Bans for People with Felonies 199 ii. Cost: Education, Training, and Application Fees 201 iii. Lack of Transparency Regarding Which Offenses Are Obstacles to Licensure 201 C. Concerns for New Yorkers 202 i. License Suspensions Upon Arrest or Issuance of Desk Appearance Tickets 204 II. Limitations of Anti-Discrimination Law to Remedy Restrictions for Licensure Applicants of Color with Criminal Records 205 A. Title VII and an Anti-Discrimination Approach 205 i. Current Trends in Employment Law Cases 207 1. Legal Landscape in the Second Circuit for Disparate Impact Claims, Informed by EEOC Guidance and Mandala v. DTT. 207 2. Analysis: Various Limitations to Title VII Claims 210 B. Relevant New York Policy for Licensure Denials 211 i. New York City Human Rights Law and Article 23-A.. 211 ii. Analysis: Article 23-A Makes it Easier for Plaintiffs but Does Not Wholly Address Discriminatory Issues 213 C. Due Process, Summary Suspensions, and FCA Amendments 214 III. Proposals: Envisioning Potential Policies to Decrease Exclusion for Those with Criminal Records 215 A. Limitations of Information Requested in a Background Check 216 B. Predetermination of Admission or Disqualification 217 C. Increased Data Collection 218 D. Expansion of the Current FCA Amendments to Cover Summary Suspensions 218 Conclusion 219 INTRODUCTION
In 1993, at 25 years old, Dawn Stephenson pled guilty to bank fraud. (1) Ms. Stephenson took steps to turn her life around: she went to community college, received an associate's degree in human services/mental health, and worked as a trauma coordinator at a medical center. (2) In 2010, Ms. Stephenson petitioned to have her criminal record expunged because she wanted to pursue a career in nursing and thought her criminal record would adversely impact her ability to get a nursing license. (3) She had not had a run-in with law enforcement since her original conviction. (4) To get more information about her potential for licensure, she called the New York State Division of Licensing Services, where a representative told her that "generally, if you have a record, you can't be licensed." (5) Because of this, Ms. Stephenson decided not to continue her education in nursing. (6)
Marc La Cloche grew up in New York City and a couple of years into his young adulthood, he was convicted of robbery in the first degree. (7) He served about 11 years in prison. (8) While incarcerated, Mr. La Cloche underwent barber training and found his passion: cutting hair. (9) Before his release in August 2000, he applied to a licensing board for a barber apprentice certification. (10) The board denied the application because of his "lack of good moral character" due to his criminal history, despite securing training for that specific vocation through a prison training program. (11) Mr. La Cloche appealed, and in June 2001, the administrative law judge (ALJ) found in Mr. La Cloche's favor because a barber's apprentice certificate does not require evidence of "good moral character"; the ALJ ordered the licensing agency to issue Mr. La Cloche a certificate. (12)
However, Mr. La Cloche was only able to work as a barber for a few months, (11) as the licensing agency appealed the ALJ's decision as a matter of law, reasoning that applicants are required, if requested, to present satisfactory evidence of "good moral character." (14) In a December 2001 decision, the Secretary of State reversed the ALJ's decision, revoked Mr. La Cloche's license, and remanded the record to the Office of Administrative Trials and Hearings. (15) Despite the remand from the Secretary of State, the administrative hearings office appeared to not hold a new hearing. (16)
After this decision, Mr. La Cloche commenced a proceeding to annul the Secretary of State's decision, arguing that "good moral character is not required for an apprentice's certificate." (17) The New York Supreme Court found that "good moral character" is an implicit requirement for the certificate, but that the state should not have considered his criminal conviction the sole reason for having inadequate moral character. (18) The court then remanded for a rehearing. (19)
At the rehearing in 2003, Mr. La Cloche submitted overwhelming evidence of good character through glowing references from his employers and landlord. He also submitted materials from his parole officer. (20) Despite Mr. La Cloche's efforts, Administrative Law Judge Roger Schneier found that Mr. La Cloche "failed to establish good moral character." (21) Judge Schneier stated that Mr. La Cloche had not given consistent testimony about one aspect of the robbery, so he had not shown sufficient remorse. (22) Mr. La Cloche did not recover his license. (23)
Continuing to persevere after four years of bureaucratic red tape surrounding a license that he was trained for while in prison, Mr. La Cloche appealed Judge Schneier's decision. (24) Sadly, before the court commenced proceedings for the appeal, Mr. La Cloche passed away. (25)
Ms. Stephenson's and Mr. La Cloche's situations show some of the overshadowed impacts a criminal record can have on people's lives. Mr. La Cloche had unusual tenacity in navigating through the legal system to advocate for a license reflecting the skills he gained while incarcerated, and yet he was denied a license because of his criminal
record. For Ms. Stephenson, the court believed she would ultimately be able to secure a nursing license, but because of licensing agents who told her that her record would be a barrier, she did not pursue the higher-paying job she originally strove for. (26) The hurdles these stories exemplify are not uncommon for people with criminal records who try to secure licenses, but the stories show an uncommon persistence. There are far greater numbers of people who do not have the resources to advocate for a license in their career of choice.
The criminal legal system in the United States disproportionately punishes Black and Latinx communities. (27) A person's initial interaction with the criminal legal system can lead to widespread consequences not only on the criminal charge but also on other areas of life, including employment and licensure. Occupational licenses, a government-provided credential that allows people to work in their chosen profession, can increase a person's pay, (28) which is of significant importance for people with criminal records, who, on average, have incomes that are substantially below the poverty line. (29)
In recent years, advocates have successfully lobbied to change policies around job application exclusions for people with criminal records. (10) Some jurisdictions, like New York City, have implemented "ban the box" legislation to prevent discrimination against people who have criminal records. (31) However, such legislation does not address the related issue of occupational licensing.
Anti-discrimination law as it currently exists is not well crafted to reach the indirect effects of the criminal legal system. Without a mechanism to address occupational licensing barriers for those with criminal histories or those with arrests, the full inclusion of people of color (specifically Black and Latinx folks) into the labor market as well as the societal pursuit of racial equity will be impaired. For that reason, this Note recommends adopting an amended version of New York City's Fair Chance Act (FCA) with modifications, including specific coverage of occupational licensing agencies within the anti-discrimination framework, increased data collection, limitations on requested information in background checks, and the creation of an arm within the licensing agencies that can provide predetermination admission or rejection recommendations. In this way, a modified and strengthened FCA could help address the racial equity harms that current anti-discrimination law doctrine cannot readily address.
To develop this argument, Part I provides background on occupational licensure and the impacts it has on people with criminal records or those with pending charges. Part II goes into further detail about national and local anti-discrimination laws and the limits and potential of those legal avenues. Part III then proposes amendments to the FCA to strengthen anti-discrimination laws for those with criminal records as it relates to licensure.
OCCUPATIONAL LICENSURE AND PROBLEMS FOR PEOPLE WITH CRIMINAL HISTORIES
This Part outlines occupational licensure, the increase in licensure in the past 70 years, specific issues that people with criminal records face when securing licenses, and concerns specific to New Yorkers.
i. Wha t is Occupa tional Licensure ?
A license is a grant of permission required by the government that allows a licensee to perform, among other things, certain job-related activities. (32) There are two main types of licenses: revenue-raising and regulatory. (33) A revenue-raising license's purpose is to raise revenue for the state. (34) A state, or municipality, uses its power to tax to charge a business or profession a fee in exchange for the license. (35) An applicant pays a fee and receives a license; there is usually no background check or inquiry into the competence of the applicant. (36) In contrast, regulatory licenses, also known as occupational licenses, are designed to protect the public interest by regulating occupations that involve the public's health, safety, and welfare. (37) Using its police powers, the state can require a license to participate in an occupation, business, vocation, trade, or calling. (38) Professions that state or local...
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