We need to “Ban the Box”

We need to “Ban the Box”

Stephanie George is serving as a stark reminder that despite recent prison reform announcements, we cannot be complacent and that the struggle for reintegration does not end outside prison walls.

George had been given a life sentence for “letting her former boyfriend keep drugs in their Florida home” and assisted in his facilitation of dealings. While the presiding judge saw her crime as being relatively minor, “his hands were tied” by mandatory minimum sentencing.

During her time there, the mother of three (one of whom was murdered shortly before her release and had written a letter to President Obama pleading for her release) did a complete about-face, using her time there to earn a business certificate and even working for a private call center through the institution. She was among the lucky ones whose sentence was commuted by the President in 2013.

While certainly her release after more than 15 years was profoundly joyful, like it did for so many others, that joyfulness subsided when reality set in that that while we are a country that speaks of freedom and opportunity, that gives tremendous lip service to granting forgiveness and second chances, there are far fewer employers who actually take those sentiments to heart. What she has discovered is that no matter the extent of her efforts to rehabilitate, most employers are not even willing to let a foot in the door to someone with a past conviction. Upon her release, George should have been a poster child for the importance of education plays in reducing recidivism. Except that, while George put in the time and effort, employers aren’t willing to put in a fraction of the effort to learn about the context of one’s imprisonment or how they made use of their time in prison in a productive capacity.

In many states, it is far too easy for an employer to immediately reject an individual’s candidacy based on one simple but fateful checkmark of the “yes” box beside “Have you been convicted of a crime?” (Though we seem to have few qualms about those responsible for the banking meltdown taking prominent positions in Wall Street and major financial firms).

The organizers of the “Ban the Box Campaign” rightly point out the structural nature of this type of discrimination, not only because of the slanting of convictions towards people of color but also because such questions are asked not only on employment applications but also those for “housing, public benefits, college admissions, loans, and opportunities for volunteer service.  and they have been leading the call to prohibit employers from including questions regarding a candidate’s criminal past on initial applications.

The US Equal Employment Opportunity Commission (EEOC) has endorsed its removal, yet there is no federal mandate requiring states to follow that recommendation. In its guidelines for how employers are to consider arrest and conviction records, it states: “A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity.”  But the problem is that unless an employer actually tells an applicant they were rejected on the basis of their criminal history, no violation of these guidelines is likely to ever be identified yet reported.

Less than 20 states in the United States have implemented ban-the-box measures, meaning that in more than half the states across the nation, job applicants can be immediately dismissed on the basis of any prior conviction. And while discrimination is still more than likely to occur, it at least gives applicants the opportunity to enter the hiring process on a level playing field without prejudice. Should their criminal history be specifically relevant to the job—such as in the manner identified above by the EEOC—it will be considered at a more appropriate time rather than before an individual has even stepped in the door.  These initiatives do not prevent any employer from performing a background check when the position requires it, nor does it make organizations liable for the criminal activities of someone whose past convictions may have been identified by asking that question (though someone bent on re-offending is unlikely to tick that box anyway).

Once again, by allowing these “boxes” to exist, we are endorsing counter-intuitive practices. Given that poverty plays such a significant role in crime and recidivism, should we not be taking every measure possible to reduce it among vulnerable populations? What precisely do we expect to happen when a former prisoner has changed their life for the better and pursued every possible opportunity for improvement, is released only to find every door closed to them upon their release? How does this improve our communities? How does this serve anyone?

If all those individuals (many of whom are small business owners) who were so quick to say “they’ve done their time” and “everyone deserves a second chance” to others were putting those words into practice, quite frankly, this situation wouldn’t exist. If you are an employer, be aware of your responsibilities and duties as an employer—you do not have the right to preclude anyone from employment whose conviction does not have a direct bearing on the job’s responsibilities.

If you would like to learn more about fair chance employment initiatives and how your jurisdiction can help “ban the box,” the National Employment Law Project has created a toolkit to help you: http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/

Banning the box is a chance for Americans to say to the world that we are the “land of opportunity” and actually mean it.