Sandra Johnson thought she was on the right path. In 2005, after 15 years in and out of prison for a variety of drug-related crimes, Sandra was sober and a free woman. She was going to do it right this time, and her first step was to get a job.
For three months she searched, meeting face-to-face with several promising employers. Her hopes were high for a couple of jobs, roles she knew she was qualified for. But one after the other the jobs suddenly disappeared, mysteriously being filled once Sandra turned in her application. It didn’t take long to figure out what was happening – potential employers who had at first been enthusiastic about her skills were suddenly going MIA when they noticed the checkmark on her resume that indicated that she had a criminal history.
It’s a common scenario, according to Beth Avery, staff attorney for the National Employment Law Project. While Title VII of the Civil Rights Act of 1964 prohibits selection policies or practices that have a disparate impact on protected classes of people, like minorities, using a person’s criminal record against them in the hiring process isn’t, in and of itself, a violation of Title VII. But a movement, commonly known as the “Ban the Box” campaign has been working to change that, and it’s building steam. Now, in 2017, with more than half of all states on board, the movement is at a tipping point.
“Checking that box is often the end of the line, regardless of the applicant’s qualifications,” according to Dorsey Nunn, executive director of Prisoners with Children.
Nationwide, 26 states have adopted Ban the Box policies, leaving advocates hopeful that one day the stigma of a criminal record will be eradicated from the hiring process, allowing a huge population of jobseekers to find gainful employment.
While the details vary slightly from jurisdiction to jurisdiction, Ban the Box policies prohibit employers from asking about criminal history on the initial job application and in job interviews, focusing instead on an applicant’s qualifications. Later in the hiring process, employers may conduct criminal background checks, but only towards the end of the process – the hope being that applicant will be seen as a whole person and not just a rap sheet.
In jurisdictions that have not adopted these guidelines, the applications of those with criminal convictions wind up in the trash, according to Dorsey Nunn, executive director of Prisoners with Children, a non-profit organization that works with the incarcerated and that spearheaded the movement.
“Checking that box is often the end of the line, regardless of the applicant’s qualifications,” he said.
In addition to Ban the Box policies, some jurisdictions are also adopting additional fair hiring policies, such as incorporating the U.S. Equal Employment Opportunity Commission’s (EEOC) best practices guidelines on the use of arrest and conviction records in employment decisions. The belief is that robust fair-chance employment laws ensure a more level playing field by requiring employers to consider whether a conviction is related to the job in question, the length of time since the conviction and whether the candidate has completed substance abuse treatment or other rehabilitation.
The changes didn’t happen quickly enough for Sandra Johnson. After three months of searching in vain, she finally landed a job as a driver for a company that transported the elderly and disabled to appointments and other destinations. On her application she checked the box indicating she had a criminal conviction, and the company performed a background check before offering her a job. She said that for the next six years she was a model employee, winning both Employee of the Month and Driver of the Year awards internally. Then the company was acquired, and she was again faced with the stark reality that her past was not actually behind her.
“They let me go with no explanation other than that I failed my background check,” she said. “I had no disciplinary action against me. I was not a problem employee. It wasn’t about me. It was about my record,” she said, choking up. “My feelings were so hurt.”
Her convictions were unrelated to the job she was performing – she had a clean driving record and no arrests for elder abuse or other crimes that could potentially put the company’s clients in jeopardy. She worried that the life she had worked to build was crumbling.
Eliminating the stigma can prevent recidivism
Study after study confirms that having a criminal record is a major barrier to employment and a major contributor to recidivism, the tendency of a criminal to re-offend. According to a 2015 report by the Manhattan Institute of Policy Research, of the estimated 650,000 to 700,000 inmates released from prisons and jails in the United States each year, as many as two-thirds will be arrested for a new offense within three years. However, those with non-violent records that had job training were re-arrested at a significantly lower rate. People with few job prospects did not fare as well.
According to Avery, more than 70 million people in the United States have a mark on their record that could hamper their ability to secure employment. It’s easy, Avery said, to miss the impact of this number until you understand the correlation between work and recidivism. While having a job is no guarantee that a formerly incarcerated person will remain out of the criminal justice system, NELP research has found that unemployment increases the likelihood. It places a significant strain on families and being unemployed and unable to care for yourself, or your family can push people to return to illegal behaviors, increasing the likelihood that an individual with a criminal record will land back in prison. It is a vicious cycle that Avery and other Ban the Box proponents argue can be solved, at least in part, through access to employment. The math is quite simple: NELP research shows that a 1% drop in the unemployment rate in this population causes a 1–2% decline in offenses.
But numbers like these don’t necessarily make it any easier to convince employers that they should hire former inmates, and that’s where Ban the Box comes in.
“The more people with records that we get into jobs, the more employers realize that, hey, this person is just like me. They’ve made a mistake in their past. Getting to that point is an important part of reducing the stigma that is holding people back,” Avery said.
According to Avery, employers who are against Ban the Box policies often cite negligent hiring laws as a reason for not implementing these policies. The threat of these lawsuits is what often prompts employers to ask about a candidate’s criminal background or to require drug testing and background checks for applicants before being hired. These procedures, many argue, help ensure that companies are not hiring workers who will place their employees, clients, or customers in a dangerous situation.
“Instead of my old [criminal] hustle, hard work is my hustle now.” – Sandra Johnson
Avery insists though that employers shouldn’t fear negligent hiring lawsuits. Reports of these lawsuits, she said, are overblown and the success rate of those types of lawsuits is low. She also thinks it’s noteworthy to point out that studies on recidivism show that the longer a person has been out of the criminal justice system, the less likely it is that they will re-offend. About six or seven years out of prison, she said, the likelihood of someone with a record committing another offense is roughly the same as the general population.
NELP encourages nervous employers to take this into consideration. Also, Avery insists that it’s important to look at the relationship between the job in question and the nature of the past offense. If the two are unrelated, she said, the likelihood that an ex-offender will harm someone is slim.
“What I want to emphasize is that we aren’t talking about the stereotype of a hardened criminal. These are our neighbors and our family members and our community members,” she said. “I think it’s really easy to ignore them as the ‘other,’ but they are just people who have made mistakes. Maintaining the idea that they are somehow different goes a long way toward perpetuating the enduring stigma these people face for the rest of their lives.”
Looking forward, not back
For Sandra, the future once again looks bright. She is using her experience to help others in similar situations. She has nearly completed an Associates Degree in Health Education and Social Science at City College of San Francisco, and in January she was awarded the 2017 Elder Freeman Policy Fellowship at Prisoners with Children. When the fellowship ends in January 2018, she will once again be looking for work, which she admits is a source of some anxiety.
“I’m going to handle it this time exactly the way I handled it the first time, which is, to be honest, to explain that I did my time, paid my restitution, and finished my parole,” she said. “If it comes up, I will answer truthfully.”
She acknowledges that her past may never be entirely erased, but she is determined to be an example to her family and to do her best to make a difference. While she doesn’t know what the future will hold regarding work, she has a message for her future employers.
“I’ll tell you, I am the most dependable employee you’ll ever hire because I appreciate it,” she said. “Instead of my old hustle, hard work is my hustle now.”