Banning the Box is Not Nearly Enough

In These Times Lewis M. Steel
June 29, 2016

At last, the United States is taking steps to reduce its enormous prison population. With 2.5 million people behind bars, we are the world’s largest jailer. Sentencing reform to reduce mandatory minimums for nonviolent crimes starts to address this problem.

But for those who have been incarcerated, punishment doesn’t end with prison: 70 million Americans are burdened with some form of criminal record that jeopardizes their ability to find a job and re-enter society. When employers learn applicants have prison records, rejection is often swift. Because African Americans and Latinos suffer a disproportionately high percentage of arrests and convictions, their rejection rates are even higher.

A movement to ban the box ” asking job applicants about their criminal background has won important victories. Twenty-three states and more than 100 cities and counties now require that employers remove questions about conviction records from job applications and put off background checks until later in the hiring process.

But this reform only delays inquiries about criminal history. In most cases, the bans are meaningless. Some cities, including New York City and Philadelphia, have enacted more protective ban-the-box regulations that restrict how an employer can use criminal records. This is significant because once criminal backgrounds are revealed, no matter how irrelevant, applicants are often rejected.

Outten & Golden, where I work, is one of the few law firms that fights to make re-entry possible for those with records. We use federal and state civil rights laws to sue employers who refuse to give applicants the second chance they deserve. One of our goals is to establish a hiring system through litigation, negotiations or government regulation that considers criminal records only after an analysis of both the job in question and whether the past crime could realistically threaten the employer’s business and, if so, for how long.

In April, we reached a breakthrough settlement with the U.S. Department of Commerce, whose Census Bureau used information from an FBI database to screen approximately 1 million temporary workers for the 2010 census. Most of these positions were enumerators, a low-skill job requiring workers to interview residents for approximately five minutes with scripted questions. Our case showed the Census Bureau rejected African American and Latino applicants for having old criminal records, including for minor crimes having little or nothing to do with the work. Those who were rejected were given no real opportunity to correct their records or seek reconsideration, a violation of Title VII of the Civil Rights Act of 1964 that prohibits intentional employment discrimination.

The settlement was submitted to the U.S. District Court in Manhattan on April 19 for approval after a fairness hearing. It will require the Census Bureau to hire two industrial and organizational (I-O) psychologists, one chosen by the plaintiffs, with expertise in determining employee qualifications for the Census Bureau’s temporary jobs. The psychologists will take into consideration the age and relevance of the full range of crimes applicants may have committed, and the temporary job requirements to determine if and how criminal records can be used as a screening device. In addition, the psychologists will design policies and procedures for clearing and processing applicants with criminal histories. The Census Bureau will also pay $15 million into a settlement fund to clear up and seal erroneous or old convictions of rejected African American and Latino applicants from the 2010 census, and pay attorneys’ fees.

That successful suit against the Census Bureau is spurring other challenges. The NAACP, the NAACP Legal Defense and Educational Fund and the Lawyers’ Committee for Civil Rights Under Law have joined with Outten & Golden to bring a fresh round of lawsuits, including cases against Monster Worldwide Inc., ZipRecruiter Inc. and the Southeastern Pennsylvania Transportation Authority for violating federal, state and city laws in screening job applicants. Only when this arbitrary disqualification of those with criminal records is substantially reduced will this new civil rights movement achieve its objective.

Written by Outten & Golden LLP Senior Counsel Lewis M. Steel.