Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
More than 100 U.S. cities and counties have now adopted some type of “ban the box” law, which prohibits employers from asking job candidates about criminal convictions before the first interview.
We have people that aren't working. We have people that have no incentive to work. But they're going to have incentive to work, because the greatest social program is a job. And they'll be proud, and they'll love it, and they'll make much more than they would've ever made…
This “lack of incentive” explanation for unemployment, of which Trump is by no means the only conservative to subscribe, misses the fact that plenty of would-be-workers’ ambitions are dashed at the very beginning of the application process. That’s because most employers ask candidates to divulge whether they’ve been convicted of crimes on job applications, and many then deny interviews to them if they have. According to the National Employment Law Project, nine out of ten employers do criminal background checks and a third of all Americans have criminal records that would turn up on them.
There’s a racial component to this sort of job applicant pre-screening as well. In a 2003 article for the American Journal of Sociology, researcher Devah Pager found that African-American men were 40 percent less likely to obtain employer callbacks than white men after divulging criminal convictions on applications. A study published last year by the U.S. Department of Justice found similar disparities for African-American women and Latinas.
For these reasons and more, there’s been a push in recent years to adopt laws that prohibit employers from asking about criminal records at the application stage, spurred by a nationwide “ban the box” movement. In New York City, for example, the city council passed the “Fair Chance Act” on June 10, which forbids many private business employers from asking about criminal histories during or before the first interview. It expands upon a law approved during former mayor Michael Bloomberg’s administration that applied to city agencies and contractors.
New York’s bill, which Mayor Bill de Blasio is expected to sign, allows employers to retract job offers after considering a criminal conviction, but not before engaging in discussion with the candidate. The candidate also has a three-day window after an offer is rescinded to clear up any misunderstandings or inaccuracies found in the criminal background check. The law additionally prohibits private employers from advertising job openings with language that suggests people with criminal convictions shouldn’t apply.
The law won’t apply to police hires. New York City Police Chief Bill Bratton recently came under fire when The Guardian reported that he blamed stop-and-frisk policies that targeted people of color for contributing to the limited eligibility of many minorities for police jobs. Bratton has since accused the newspaper of taking his comments out of context, but the NYPD of course does require a criminal background check as part of its application process.
Over 100 cities and counties have passed some version of “ban the box” laws, and Oregon may soon become the seventh state to block private employers from doing criminal checks before the initial interview. Portland already has such a law for city government jobs, but has been considering expanding it to private employers, also.
Efforts to pass such legislation haven’t been a slam-dunk everywhere, as Davidson County, Tennessee, learned recently when a “ban the box" referendum was rejected by the county election commission there. The county’s seat, Nashville, is ranked 14th among the 50 largest U.S. metropolitan areas on unemployment, according to the Bureau of Labor Statistics.
The conversation around stopping pre-emptive criminal background checks, meanwhile, is also now being extended to colleges. As prison reform activist and felon Keri Blakinger wrote over the weekend for The Washington Post:
But even in areas that ban the box on job applications, education remains a barrier to gainful employment for many people with criminal backgrounds. There are no prohibitions on asking about criminal history on college applications.
Research on the effect of “the box” on college admissions decisions, while limited, suggests that it’s a major hurdle for applicants with criminal histories. In 2010, the Center for Community Alternatives surveyed 3,248 colleges about how they use applicants’ criminal histories in admissions. Of the 273 responding colleges, 55 percent said they do ask about criminal history on their initial applications and use the information in the admissions process. The Common Application, accepted at more than 500 schools nationwide, has a criminal-history question.
The state of New York is considering legislation called the Fair Access to Education Act, which would make it illegal for colleges to ask about criminal background in admissions decisions.
Criminal convictions have, of course, disrupted meaningful re-entry into society in other sectors of life as well, including voting and obtaining public housing. The U.S. Department of Housing and Urban Development began easing such public housing restrictions in 2011, as did New York City’s housing authority in 2013.
Meanwhile, legislation is currently pending (or languishing) in Congress that would expunge certain crimes that disqualify people from employment and public benefits.