Obama Moves to Remove the Requirement for Federal Job Applicants to Disclose Their Criminal Backgrounds

The goal is to reduce employment discrimination against offenders, a serious problem across the United States.
Publish date:
November 4, 2015
employment, jobs, Discrimination, prison reform

In an announcement on Monday morning, President Obama announced that he was "Banning the Box," removing the checkbox on federal employment applications in which people are required to disclose their criminal backgrounds. Instead, ex-offenders have no obligation to disclose until they're further along in the employment process, at the stage when agencies are conducting background checks.

The goal is to reduce employment discrimination against offenders, a serious problem across the United States, where felons are punished twice: Once in prison, and again when they get out and can't find work because prospective employers are afraid of people with criminal histories.

The box is an everpresent force on employment applications, not just on the federal level, though historically, federal agencies and contractors alike both required disclosure — the president's order did not apply to contractors, who can continue to request that applicants discuss their criminal history at the time they submit their application materials. Generic employment applications used all over the United States from coffeehouses to bookstores typically feature the checkbox, and many companies include it in customized application materials.

Employers use a variety of justifications for saying that they want to avoid people with criminal histories — they're afraid of theft, for example, or a poor work ethic. There are actually very few cases in which it's legal to discriminate against people with criminal backgrounds (people with sex offenses on their records, for example, cannot work with children), and the United States Equal Opportunity Employment Commission indicates that such discrimination could violate the Civil Rights Act of 1964.

That doesn't stop employers from doing it. And it creates a vicious cycle, because people who cannot find jobs can find themselves forced back into the same situations that led them to criminal activity in the first place. Moreover, their families are deprived of their income when they're incarcerated, while also shouldering the considerable expenses of having a family member in prison.

In this sense, employment discrimination creates a ripple effect with potentially devastating consequences.

It also happens extremely commonly. Studies indicate that having a criminal record can decrease employer interest by as much as 50 percent, and that number is even higher for people of color, especially black men. No matter why someone is in prison, it can become a stumbling block to employment for life, leading people to few job opportunities, typically with limited room for advancement, poor wages, and little to no employment protections.

For ex-offenders concerned about working conditions, there's also a strong incentive to tolerate such conditions, even if they verge on the illegal, because they might not necessarily be able to find work elsewhere.

Some companies, like Dave's Killer Bread (recently featured in a Daily Show segment), Rubicon Bakery, and Felony Franks actually specialize in hiring ex-offenders and giving them a chance at a job. Organizations like Insight Garden Program work in jails and prisoners to provide inmates with valuable skills they can apply to job placement on the outside, and in addition to assisting with employment, they also provide other mentoring services, like counseling and housing assistance.

Some prison reentry programs provide prisoners with placements in local businesses and promote organizations that agree to hire ex-convicts, but many employment opportunities remain closed to those with criminal histories. Human resources officers flicking through resumes to look for potential interview candidates are biased against those with criminal histories — and the box provides no space for explanation or discussion, simply requiring a yes or no answer. Applicants who don't check the box in the hopes of getting a chance to disclose later will be accused of falsifying their applications. It's a no-win situation.

The Ban the Box movement has been growing by leaps and bounds in recent years. In 2015, a concerted effort from groups like the National Employment Law Project pushed the president to address the issue on the federal level, making this month's announcement a vital step. While it hasn't been extended to federal contractors yet, that could be the next development.

On a state and local level, some states have already enacted laws to address employment discrimination against ex-offenders, and so have a number of municipalities. New York City in fact just passed a "Fair Chance" bill for ex-offenders. Employers may not ask about criminal history on applications or during interviews — once they have extended conditional offers of employment, then they can conduct background checks. Should they choose to reverse the offer of employment, they must come up with a compelling reason for doing so, and that reason can't be "you did time for kiting checks."

These kinds of policy changes represent a huge victory in the fight against employment discrimination, but they tie in with layers and layers of discrimination of other forms as well. People of color are already at an employment disadvantage regardless of criminal record. Given that people of color are more likely to be incarcerated and more likely to be discriminated against if they have criminal records, they're facing a multilayered pancake tower of oppression that's not topped with syrup.

And it's also an important development for prison reform. The American justice system has been in crisis for decades for a variety of reasons, and one of the more problematic elements of the system is the tendency to punish offenders over and over again after they've already completed their sentences. Felon disenfranchisement is the law in many states, for example, and employment discrimination is another example of how people who have spent time in prison — guilty or not — are punished.

Some types of offenders are also the victims of baroque parole laws that can be extremely challenging to follow, making it easy to run afoul of the authorities and increasing the chances of returning to prison. Notably, analysis of recidivism rates and how they're calculated suggests that it's actually parole violations skewing recidivism rates up — it's not that people reoffend and endanger the public, but that they're penalized for technicalities.

Returning to life outside the prison system can be a difficult adjustment, especially for those who have been imprisoned for decades. It's challenging to find work and housing, to fit in with family members again, to establish friendships and connections. Banning the box will help break down one chunk of the wall that stands between success and failure for ex-offenders trying to get their lives back together, and Obama's mandate may set the tone for other states to do the same.

Moreover, Congress is also on the quest to ban the box, enshrining it in federal law. The bipartisan "Fair Chance Act" seeks greater equality in employment. If it passes, it might change the employment landscape forever.

Photo: Ken Teegardin (Flickr/CC)