When any sentence is a life sentence: employment discrimination against ex-offenders.

• Author: Flake, Dallan F.
• Position: Abstract through II. Legal Limits on the Employment of Ex-Offenders A. Constitutional Cases, p. 45-72

ABSTRACT

For the sixty-five million Americans with a criminal record, it is cruelly ironic that perhaps the most important resource for turning their lives around--employment--is also often the most elusive. Shut out from legitimate job opportunities, many ex-offenders resort to illegal means of survival that hasten their return to prison. Recidivism has devastating consequences not only for the individual offender, but also the family, the community, and society at large. This article proposes three amendments to Title VII of the Civil Rights Act of 1964 that seek to balance ex-offenders' need for employment with employers' safety concerns. First, employers should be prohibited from discriminating against an ex-offender whose criminal record is not directly related to the job in question or who does not pose an unreasonable threat to property or to the safety of others. Second, employer inquiries about an applicant's criminal record should be delayed until after at least one job interview. Third, a negligent hiring provision should be added to Title VII that creates a rebuttable presumption against negligence and that caps damages in certain cases. These measures represent a sensible, middle-of-the-road approach that promotes the employment of ex-offenders in appropriate cases, while ensuring that neither employers nor the public are unduly burdened as a result.

TABLE OF CONTENTS INTRODUCTION I. AMERICA'S CRIMINAL PROBLEM A. Mass Incarceration in the United States B. Barriers to Ex-Offender Employment 1. Individual Characteristics 2. Employer Biases. 3. Statutory and Regulatory Limitations C. Ex-Offender Employment D. Unemployment and Recidivism E. Consequences of Recidivism II. LEGAL LIMITS ON THE EMPLOYMENT OF EX-OFFENDERS A. Constitutional Cases B. Title VII Cases 1. Disparate Treatment Claims 2. Disparate Impact Claims 3. EEOC Guidance C. Negligent Hiring Cases III. AMENDING TITLE VII A. The Inclusion of "Nondisqualifying Criminal Records" as Protected Status B. Banning the Box C. Negligent Hiring D. Potential Impact CONCLUSION INTRODUCTION

"Been clean, can't get a job, I guess because of my background. My past predicts my future." (1) After spending eleven years in prison for street crimes, Maurice Ruffin knows his employment prospects are bleak. This is especially true in a tight job market, where one nonprofit official who trains ex-convicts in job-hunting skills lamented, "They're always at the back of the line, and the line just got a lot longer." (2) For Maurice and the sixty-five million other Americans with a criminal record, it is cruelly ironic that perhaps the most important resource for turning their lives around--employment--is also often the most elusive. (4) Due to persistent stigmas and stereotypes about people with criminal records, ex-offenders know that so long as employers can deny them employment because of their criminal history, any sentence is effectively a life sentence they must continue serving long after their debt to society has been paid.

Despite broad consensus that ex-offenders need to be working, there is considerable disagreement over how best to accomplish this feat. (5) Employers often resist efforts to limit their ability to consider an individual's criminal history out of fear that such restrictions could jeopardize workplace safety and expose them to negligent hiring claims. (6) Lawmakers, too, are often reluctant to push for legislation facilitating the employment of ex-offenders because they do not want to appear soft on crime. (7) In fact, the vast majority of laws and regulations concerning ex-offender employment are exclusionary in nature, banning individuals with criminal records from entire industries, restricting licensing boards from granting occupational licenses to ex-offenders, and mandating that employers perform criminal background checks on applicants for certain types of jobs. (8) In reality, just one federal law limits an employer's ability to discriminate against ex-offenders. Under Title VII of the Civil Rights Act of 1964, an employer can be held liable for treating people with similar criminal records differently, or for maintaining a policy that screens individuals based on criminal history--but only if such differential treatment is otherwise tied to race, color, religion, sex, or national origin. (9)

Although negative stereotypes about ex-offenders abound, growing recognition that people with criminal records need to be working has generated a number of positive changes at the state and local levels. Fourteen states now limit discrimination against ex-offenders in public employment, (10) and five of those states have extended such prohibitions to the private sector. (11) Dozens of cities, including Boston and San Francisco, have enacted similar ordinances. Perhaps the most promising development is the growing "Ban the Box" movement, which seeks to remove criminal background questions from job applications and to delay background check inquiries until further in the hiring process to give ex-offenders an opportunity to interview and explain why they are qualified for employment instead of being automatically disqualified because of their criminal record. (14) By 2015, eighteen states, Washington, D.C., and over one hundred cities and counties had passed laws banning the box. (15) New York City's recently-enacted Fair Chance Act, for example, prohibits employers from inquiring about a person's criminal background in most cases until after a conditional offer of employment is made. (16) The EEOC has likewise endorsed removing criminal history questions from applications as a best practice. (17)

In addition to legal changes, ex-offenders are benefitting from a variety of other measures designed to facilitate their employment. In 2011, US Attorney General Eric Holder established a cabinet-level federal interagency Reentry Council to "coordinat[e] re-entry efforts and advanc[e] effective re-entry policies." The federal government has also launched several initiatives to encourage the employment of ex-offenders. For example, under the Work Opportunity Tax Credit program, employers claim approximately $1 billion in federal tax credits each year for hiring individuals from certain target groups, including ex-offenders. (19) The Second Chance Act allows the federal government to provide substantial resources to state and local governments and community organizations to help ex-offender reintegration. And the Federal Bonding Program provides employers with free-of-charge bond insurance against theft, forgery, larceny, and embezzlement to further incentivize employers to hire ex-offenders. (21)

Advocacy groups are also playing a greater role in assisting ex-offenders in employment. Organizations like The National HIRE Network and The Next Step maintain successful networks of ex-offenders looking for employment, agencies and facilities that manage their post-release experience, and employers willing to hire ex-offenders. (22) In Chicago, ex-offenders can receive vocational training, employment placement assistance, life-skills training, and mentoring. (23)

Lastly, a growing number of employers are voluntarily changing their hiring practices to facilitate the employment of ex-offenders. High-profile retailers Walmart and Target Corporation recently announced plans to remove the criminal history box from their applications nationwide. (24) In Columbia, South Carolina, a furniture moving company appropriately named "Felons R Us" proudly hires employees with nonviolent felony records. (25) Other businesses have created specialized training programs involving the recruitment of ex-offenders and team up with community-based organizations to match ex-offenders with stable employment. (26)

Although certainly steps in the right direction, these efforts are inadequate given the reality that each year approximately seven hundred thousand prisoners are released back into their communities, (27) often without any prospects for employment. (28) Within five years of release, more than three fourths of ex-prisoners are rearrested, (29) and between 40 and 50% of ex-prisoners return to prison. (30) Because employment is one of the strongest predictors of recidivism, (31) any hope of lowering the United States' recidivism rate will require major changes to federal employment discrimination laws to give ex-offenders greater employment opportunities. Although restrictions on ex-offender employment make sense in some settings, (32) in many situations a person's criminal record has little or no bearing on job performance. In those cases, legislative protections for ex-offenders are warranted.

This article advocates for three amendments to Title VII that would facilitate the employment of ex-offenders without unduly burdening employers or the public. First, Title VII should be amended to prohibit employment discrimination if an ex-offender's criminal record is not directly related to the...