Excerpted from The Atlantic By Margaret Barthel
Dozens of states and D.C. have restricted when companies can ask about job applicants’ criminal records—but many aren’t following the rules.
DeVaughn Bell had been home in Washington, D.C., from federal prison for only one month, and he’d gotten interviews for several jobs. But none of them stuck. He’d have a positive interview—in one case, he even received an offer and a start date—and then someone would tell him the company couldn’t move forward with him. “It was kind of discouraging,” Bell says, “because I was coming home thinking, Okay, it’s going to be better now.” He suspected the employers’ sudden lack of interest was because of his criminal background.
Over the past two decades, the federal government, 35 states, and more than 150 cities, including the District of Columbia, have created “ban the box” policies, which restrict when an employer can ask a job applicant about his criminal history. D.C. passed its ban-the-box law, known as the Fair Criminal Record Screening Amendment Act (FCRSA), in 2014, while Bell was incarcerated. Under that law, employers in the district must delay questions about criminal history until after they’ve made a conditional offer of employment. Then they can ask about criminal convictions—not about charges or arrests. At that point, if an employer retracts an offer, it has to be for a “legitimate business reason,” based on the frequency and seriousness of the offense, the time elapsed since it was committed, or a connection between the duties of the job and the crime, and the employer must give the unsuccessful applicant information about how to file a complaint with D.C.’s Office of Human Rights.
Bell says a food-service contractor, Sodexo, interviewed him for a position at the National Zoo. But according to Bell, when a hiring manager found out about his criminal record in a conversation with Bell’s caseworker at a halfway house where he was staying, the hiring manager told the caseworker that Bell could no longer be considered for the job. (A spokeswoman for the National Zoo referred a request for comment to Sodexo; a Sodexo spokeswoman declined to comment on Bell’s experience but said that the company “does not consider having a conviction to be an automatic disqualifier.” The director of the halfway house also declined to comment on Bell’s allegations.)
Bell didn’t learn the details of D.C.’s law until months after this experience and similar others, when he attended a presentation about former prisoners’ rights in the hiring process. He thought he might have been a victim of violations: The Sodexo hiring process for the National Zoo had ended as soon as his criminal background came to light, for example. Another job he applied for was also with Sodexo, as a cook for D.C. Public Schools. In that case, Bell says, Sodexo gave him an offer and a start date and then rescinded it, but Bell doesn’t know whether that was related to his criminal record. (Sodexo declined to comment on Bell’s hiring process in that instance, but said it “complies with all state, federal, and District of Columbia employment laws.”) By then, it was too late to notify the D.C. Office of Human Rights, which requires that a complaint be filed within a year of the alleged incident. A spokeswoman for the office declined to comment on Bell’s circumstances.
Politicians tout ban-the-box laws as popular criminal-justice-reform measures with support from liberals, centrists, and some conservatives. Cory Booker, the U.S. senator and Democratic presidential hopeful, was among a group of bipartisan legislators who introduced a bill that would “ban the box” for all federal and federal contract jobs, codifying protections previously instituted under President Barack Obama and extending them to federal contractors for the first time. The measure passed in the House of Representatives in July.
The rhetorical appeal of these measures, collectively referred to as “fair-chance hiring,” is clear: Give people who have served time a fair shot at competing for jobs by removing questions about arrests, charges, and convictions from at least the initial parts of the hiring process. Let them be considered by their current merits, not past mistakes. Some advocates argue that banning the box can also help address deep racial disparities in the criminal-justice system, which disproportionately affects people of color.
What’s less clear is whether the various ban-the-box policies across the country are being implemented and enforced in a way that makes good on their promise, and give the roughly one-third of adults in the United States with criminal records the tools to know their rights.
More than a dozen of the 35 states with ban-the-box policies have instituted a state-level enforcement process to give job seekers an avenue to report violations. Other states don’t specify enforcement procedures explicitly, and it was difficult to pin down if and how those states are processing ban-the-box complaints. In some cases, state personnel either weren’t aware of ban-the-box policies in the first place or weren’t able to explain how they were being enforced. Most jurisdictions that actively enforce the laws do so by putting an agency—sometimes a department of labor or a human-rights watchdog—in charge of collecting and evaluating complaints from individuals who feel that their fair-chance-hiring rights have been violated. If employers are found to have broken the law, they’re required to pay damages to the individual or a fine to the jurisdiction—usually about $1,000, though the amount can fluctuate, depending on the size of the employer and how many violations they’ve racked up in the past. A few ban-the-box laws also allow job seekers to bring civil lawsuits against employers.
The volume of complaints varies widely. In D.C., which is credited with having one of the most robust public-education and enforcement processes for its ban-the-box law, the Office of Human Rights received 500 to 700 complaints a year in the first three years of the FCRSA. (In 2018, it got just over 100, which the office’s director, Mónica Palacio, believes is the result of better employer compliance with the law.) Most years, close to two-thirds of complaints have ended in charges. D.C. offers a major incentive for people to report violations: If someone files a successful complaint, he is entitled to half of the fine imposed on employers.
Some cities with populations like D.C.’s received significantly fewer complaints. In Seattle, which implemented its law in 2014, the city’s Office of Labor Standards received 37 fair-chance-hiring inquiries in the first year of implementation. (That figure has increased since then, and as of mid-August this year, the city had received 49 inquiries.) Austin, Texas, received just five complaints in the first two years of its law, according to a KUT/Austin Monitor investigation.
States are likewise seeing only modest numbers of ban-the-box complaints and resolutions. Of the states with readily accessible data, none reported more complaints or resolutions than D.C. in the first few years of implementation, despite having far larger populations. California, which instituted a ban-the-box law applying to private employers in January 2018, saw just 413 complaints by September 2019. (The state has had ban-the-box restrictions for public employers since 2014.) The Massachusetts Commission Against Discrimination reported just 21 fair-chance-hiring complaints in 2018. This year, the Minnesota Department of Human Rights identified just 21 ban-the-box violations as of mid-August.
Many violations of ban-the-box policies are straightforward: The employer just didn’t remove questions about criminal history from its job-application form. Ninety-four percent of complaints to the D.C. Office of Human Rights were about employers who had criminal-background questions on their application forms. In the remainder of cases, alleged violations took place during the interview or offer process. That’s a trickier kind of violation to identify and prove, according to Palacio. “Those are more nuanced, and those can easily keep happening,” she says, in contrast to the violations related to application questions, which are simpler for both employers and job seekers to identify and fix.
In states and localities whose policies apply only to public employers, governments typically ask their human-resources agencies to remove criminal-history questions from state job applications, but many of them don’t establish complaint or enforcement processes.
In the case of California’s previous ban-the-box law, which covered only the public sector, governments in the 10 largest counties and the 10 largest cities in the state had successfully removed criminal-background questions from their job applications by the date the law took effect, according to a National Employment Law Project survey. But Beth Avery, an attorney with NELP, which advises localities on fair-chance-hiring issues, acknowledges that even in the public sector, compliance likely isn’t perfect. “I’m sure that things fall through the cracks,” she says, depending on internal government support for the policies.
In general, interpreting data on ban-the-box compliance can be tricky. “You can’t assume that a lack of complaints, for example, means high compliance,” Avery says. “It could mean a lot of things.”
People overseeing ban-the-box implementation assume that low numbers of complaints don’t indicate better compliance; instead, possible violations are likely being under-reported. Kevin Kish, who leads California’s Department of Fair Employment and Housing and has found the state’s fair-chance hiring complaint numbers to be lower than he anticipated, reflected on attending a recent event for the reentry community in South Los Angeles: “I could count on two hands, of the hundreds of people there, the number of people who knew about this.” Kish recently hired an assistant deputy director of education and outreach to increase awareness across the state.
Changes in staffing are also possible in Austin, where a local news report last year found that the city’s human-resources department, which is tasked with outreach and enforcement of ban-the-box, had failed to resolve the handful of complaints that had come in since the law went into effect in 2016.
Greg Casar, the city councilman who shepherded Austin’s measure, says he’s pushing the city to move enforcement of fair-chance hiring to a new civil-rights agency, which would “not just focus on education and taking reactive complaints,” but also “do proactive enforcement” and gather more comprehensive data, with the goal of making fair-chance hiring a norm among the city’s employers. “We’re never going to get fair-chance hiring fully implemented based on enforcement,” Casar says. “The point is to create a culture in the city that it’s just the right thing to do.”
Many jurisdictions already have extensive engagement programs, some involving unexpected initiatives: In Seattle, the Office of Labor Standards conducts fair chance hiring workshops with individuals who are in transitional housing programs and attended a hiring fair for the reentry community. In D.C., the Office of Human Rights has been sending ambassadors to talk to D.C. residents incarcerated in far-flung federal prisons about their rights, and it even partnered with a local “hackathon” to challenge programmers to come up with software to help them seek out and find online job applications that still included the “box.” (While no team successfully developed such software, Palacio thinks the hackathon at least helped get the word out about fair-chance hiring.)
Elizabeth Milito, an attorney at the National Federation of Independent Business, a trade group representing about 300,000 small businesses, runs legal workshops for small-business owners and says some violations stem simply from a lack of awareness among employers. “It’s like, ‘Whoa, I didn’t mean to violate anything, but I didn’t even know that happened,’” she says.
Perhaps partly because of the compliance issues, it’s not clear that ban-the-box policies are meeting the goal of removing bias toward people with criminal records from the hiring process.
Some research suggests that, at least in the public sector, the policies are working as intended, increasing the likelihood that people with records—disproportionately people of color—will get hired. But other studies support the concern that banning the box is not helping, and could actually be hurting, black and Hispanic job applicants. “What my research and what other research is showing is that when employers aren’t able to ask, they use race as a proxy,” Jennifer Doleac, an economist at Texas A&M, says. (That would constitute a violation of existing federal anti-discrimination laws, not just the spirit of ban-the-box policies.) Others suggested that employers could easily get around some limitations placed on them by ban-the-box simply by Googling applicants.
Still, advocates for banning the box are leery of throwing out a tool that could help even the playing field. “I wouldn’t say that the response is to decrease protections,” says Kish of California’s Department of Fair Employment and Housing.
DeVaughn Bell says he’s glad D.C. has those protections in place, even though he still didn’t land a job. Instead, he’s created his own: With the help of an entrepreneurship certificate program for formerly incarcerated people at Georgetown University, he opened a vegan halal catering business. His goal: hire other D.C. residents returning from prison, smoothing their path to employment.