Leiden Law Blog

Boxed-In and Locked-Out of the Workplace

Boxed-In and Locked-Out of the Workplace

Applying for a job in the United States is not seemingly different than the employment procedures required by most other developed nations. Many of us are familiar with the tedious paperwork process of filling out forms, providing our basic information, listing our relevant experience, noting our times of availability and desired salary, and wondering if your potential employer will ever really contact your references for a second opinion. For most of us, job applications are a matter of ticking boxes and moving on. But for one in four Americans, answering one mere question on the job application "Have you ever been convicted of a crime?" often results in complete employment ineligibility.  The goal of submitting a job application is to stand out positively to prospective employers. But, for those 65 million in the US that have a criminal record, this chance is diminished and doors are closed before they even had a chance to open. 

At the moment, there are no specific Federal laws pertaining to "employment background checks" and regulations vary from state to state, but their impact is widespread. Although applicants are under the protection of equal opportunity policies which defend against discrimination, status as an "ex-criminal" is not included under the umbrella of  these provisions. Especially considering that the United States remains a nation plagued by high incarceration rates, employment prospects remain even more dim for those recently released from prison. In an effort to address such inequalities, the "ban the box" initiative, which seeks to stop companies from using criminal record checks, has taken shape in the form of legislation and pending bills state-wide. Yet private sector proponents of criminal history checks continue to justify them as necessary. Thus, a balance must be struck in promoting the upward mobility of ex-cons while maintaining safety in the workplace. 

Checking the Records

America is still enduring an era of tough times. With an estimated one out of seven living in poverty and the economy still in a state of recovery since the 2009 recession, budgets as well as job market prospects remain tight. In light of these circumstances, we must more than ever be apprehensive of their implications for crime. Considering the link between inequality and crime as presented by Kelly (2000) and the increased chances of recidivism by previous offenders, those with criminal histories, particularly those recently discharged from prison, are most in need of stable employment. Even after being clean from crime, redemption doesn't come easily. As noted by Blumstein and Nakamura (2009) if someone were to commit a burglary at the age of 18, even when applying for a job at the age of 40, they must disclose their prior offence. In this sense, even when time is served and debts are paid, the stigma seems to follow ex-criminals like a shadow into the workplace and throughout their life course.

According to a 2012 survey, roughly two-thirds of companies in the US conducted criminal background checks on candidates for employment. The justification by companies for implementing and upholding such background checks is to assure safety in the workplace, insure company integrity, and defend themselves against the prospect of lawsuits due to negligible hiring. If someone who was potentially dangerous or behaviourally unstable does inflict harm upon co-workers and the situation was preventable by means of screening, companies are legally liable for the damage incurred. Via the ruling provided by Green v. Missouri Pacific Railroad Company (1975), employers must consider the (1) the nature or gravity of the offence; (2) the time elapsed since the conviction and/or completion of the sentence; and (3) the nature of the job sought or held when referring to criminal records for hiring eligibility. Although this test does aim to moderate the use of background screening, it does not control for the subjective discretion by employers. For example, in 2012, Pepsi Co. was forced to shell out millions after facing federal charges of disproportionate discrimination against black applicants by use of criminal background checks, many of whom were merely arrested or had no prior convictions. 

A Shot at the Job

The clause following a criminal history check question typically states: "Answering 'yes' to this question will not be an absolute bar to an offer of employment. " Although criminal record checks are not supposed to automatically exclude applicants from a chance at the job, if they do possess a record there is no guarantee that practice will follow policy. Research by Pager (2003) has proven that having a criminal record negatively affects being considered for a job and significantly decreases the chances of being called back post-interview. There were also notable differences for race, where White males with a criminal record still had a better chance for a call-back (17%) compared to African-Americans without a record (14%) That said, mechanisms for evaluating the fairness of hiring practices remain complicated. Employers rely on multi-varied determinants, such as perceived work ethic, personality, experience, etc. when selecting the best employees. But, these determinants can also be used to overshadow and justify underlying discriminatory hiring practices based on the hidden biases of employers. 

Ban the box: A cure-all?

Job seeking is already, in itself, a laborious game of jumping through hoops. Everything from the first handshake, to choice of dress, to saying, or not saying, the right words is crucial to moving on to the next round. But, when one's identity is tainted by the negative label of former "criminal," it makes landing the job insurmountably harder. By being "boxed in" by the ex-con stigma, it tends to thwart chances for upward social mobility, successful reintegration, and ultimately reduced recidivism. Campaigns like "ban the box" are assuredly a step in the right direction towards giving ex-cons a more fair chance to compete on the job market. But, in appealing to both ex-criminals and employers alike, as Bushway et. al (2011) emphasizes that one of the biggest questions concerns a matter of time to which once criminals can be truly be considered "redeemed." Whether this redemption be in the eyes of employers or society at large, may we be reminded by Martin Luther King, Jr in his letter from Birmingham Jail — "Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."

1 Comment

bfhlaw
Posted by bfhlaw on October 16, 2014 at 17:34

Interesting to see … thank you it’s well done smile
Thanks Bfhlaw @ http://bfhlaw.se

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