This is a paper that was written for one of my business classes. Comments welcome.
Discrimination of Felons in the Workplace
September 20, 2010
When people think of discrimination in the workplace, most people would think of the issues outlined by the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission (EEOC). Another common area used to discriminate, is an applicant’s criminal history. Look at almost any job application and there is a box asking if the applicant has ever been convicted of a felony. Many companies do not have a written policy which addresses applicants who have a criminal background, while other companies put it simply –no felons. This paper will review various statistics regarding the United States incarceration rate, legal proceedings that involve multiple companies and their policies surrounding employment of ex-offenders. This paper will also address how ex-offenders are commonly treated when trying to find employment, after they have met what is recognized as restitution to the community, and how it affects them.
Legal Versus Illegal Discrimination of Felon Employment
In the last 30 years, the number of incarcerated people has increased over 500 percent, leaving the United States with the highest incarceration rate worldwide (Mauer, 2001 as cited by Pager, 2002). The growing number of people being processed through the criminal justice system raises important questions surrounding the consequences of incarceration and the future employment outcomes for job seekers. Research preformed by Pager, (2002), discusses a formal test used to assess the different degrees to which a criminal record may affect a person’s employment. “Recent trends in crime policy have led to the imposition of harsher sentences for a wider range of offenses, thus casting an ever widening net of penal intervention” (Pager, 2002). For example, in the past judges were able to consider a range of facts related to the individual and the crime committed, yet the adoption of mandatory sentencing laws removed that discretion. While ‘tough on crime’ policies may be getting criminals off the streets, little thought has been made for when they are released. Incarceration is associated with limited future employment opportunities (Freeman 1987; Western 2002, as cited by Pager 2002).
Employer and Ex-Offender Rights
Many scholars and advocates of employment discrimination law debate the success of Title VII of the Civil Rights Act of 1964 and how it is hampered by the ‘Doctrine of at Will Employment’. Employers who use the ‘at will’ employment policy have a broad discretion to terminate employees for any reason or for no reason at all which is at direct odds with Title VII goal’s of addressing equal employment opportunity (Suk, 2007). Keep in mind, currently under EEOC (n.d.) guidelines:
“Pre-employment information requests which disclose or tend to disclose an applicant’s race are personal background checks, such as criminal history checks. Title VII does not categorically prohibit employers’ use of criminal records as a basis for making employment decisions. Using criminal records as an employment screen may be lawful, legitimate, and even mandated in certain circumstances. However, employers that use criminal records to screen for employment must comply with Title VII’s nondiscrimination requirements.”
One thing that employers try to take into account is their own rights in regards to their property, as well as their employee and customer rights. Property rights are commonly seen as fundamental human rights and the foundations for a free and democratic society (Greve, 1993; Hyde, 1998 as cited by Lam and Harcourt 2003). Some have argued that individuals should have perfect freedom to use their possessions as they wish, as long as this property use harms no one else- including using their property to hire laborers. Employers argue that they should have the right not to hire ex-offenders that have been found guilty of damaging property or persons. There are numerous statistics stating that high percentages of violent offenders will, within five years be re-convicted of another crime and incarcerated (Lam & Harcourt, 2003). Under these circumstances it is understandable when employers are reluctant to hire ex-offenders. Although property rights are well recognized by many nations' constitutions, declarations, and laws, they are not generally regarded as absolute rights. These rights are relative, and can be circumscribed by law when necessary.
If convicted of minor charges, many people retain their freedom and rights, while continuing to live and work in the community. Those incarcerated lose their freedom, at least temporarily, and are more heavily watched to protect the rights, and safety of law-abiding citizens. Once a sentence has been served, offenders are released back into the community where they are expected to resume a normal life (Lam &Harcourt, 2003). Yet many ex-offenders endure additional 'punishments' imposed by other groups in society in the form of life-long stereotypes or discrimination. “Decisions to use [criminal background] information to exclude ex-offenders from being hired are an unjustified extension of the legal punishment” (Lam &Harcourt, 2003).
For a law-abiding citizen, a background and credit check usually does not cause any worry, but for an ex-convict it can be seen as an unnecessary invasion of privacy. “If ex-offenders are not given a second chance, to legitimate employment, how can they be expected to lead a 'normal' life without relying on social welfare or resorting to illegal activities?” (Hubbell, 2001, p. DI as cited by Lam &Harcourt, 2003).
How Employers Decide if They Should Hire Felons.
Though claiming hiring practices are driven by the requirements of clients, many outsourcing firms like Accenture are facing discrimination lawsuits involving background checks (Hansen, 2010a). At least one class-action lawsuit has been filed using a violation of Title VII of the Civil Rights Act. A screening company in New York paid a $200,000 fine after an investigation found it aided employers in automatically disqualifying thousands of applicants and assisted one employer in withdrawing offers of employment to more than 100 applicants (Hansen, 2010a). A lawsuit filed in April 2010, challenges the practice of running job applicants' names through the FBI criminal records database, which is well known to be inaccurate, incomplete, and disproportionately excludes ex-offender applicants.
Companies who frequently cite statistics on workplace violence often fail to realize the majority of incidents are not committed by employees at all, but those unconnected to the workplace at all. There is no evidence that proves employees with a criminal background are likely to commit more acts of workplace violence (Hansen, 2010b). There is no strong evidence that having a criminal background directly threatens others' safety or property. In the U.S., over 13 million arrests were made in 2001 (excluding traffic violations); with drug abuse being the most common offence (U.S. Department of Justice, 2002, pp. 232-233 as cited by Lam & Harcourt, 2003).
What is Being Done to Help Fix The Issue
In the next 12 to 18 months, the EEOC will begin requiring businesses to provide proof that it is a ‘business necessity’ to continue to use background checks to maintain work place safety. Multiple screening agencies have no evidence that the “no convictions” policy helps reduce workplace crime (Hansen, 2010b). Employers and applicants will benefit from the new EEOC guidelines which bring clarity to what is now a legal mud hole of untested assumptions and possible discrimination.
Our cities are the launching point for record numbers of people released from prison and trying to seek gainful employment. Private, non-profit, and government sectors, have compelling examples of leaders trying to forge reforms that address this reentry challenge (Emsellem, 2010). Research performed by Emsellem and the National Employment Law Project, (NELP) (2010), focuses on promising policies that promote hiring of individuals with criminal histories. NELP and Emsellem’s, (2010), research features 23 cities and counties that have ‘banned the box’ on applications. NELP showcases other hiring strategies, ranging from tax credits to source hiring policies that open up employment for people with criminal records (Emsellem, 2010).
Unemployment of Felons Effect The Individuals And Their Families
While many people claim to give others at least one chance to make up for past mistakes, ex-offenders do not usually get that chance. Numerous educational and reform programs are available to offenders while incarcerated. Once an offender has chosen to improve his or her employability, and get away from their previous criminal activity, they are sometimes faced with opposition. When an individual completes their chosen program(s), they may receive a certificate of completion or a degree. Both of these documents are added to an offender’s career portfolio, which assists in their job search upon release.
After being released from incarceration, many ex-offenders are released to what is known as a ‘half-way house’ where they are still under supervision and have rules to follow. Ex-offenders now begin looking for work and a place to call home. After completing their reformation or educational programs, most ex-offenders must now face the stereotype of having a criminal history. Some try to leave being incarcerated in their past while others simply look at the ‘closed doors’ ahead of them and return to their previous criminal activities.
This author has seen ex-offenders be turned down for housing and job opportunities because of their past. Even if the offence happened more than a decade ago and the ex-offender has had a solid work history before incarceration, as well as a steady rental history or own their own home.
Without a steady place to live and some way to support themselves many ex-offenders are unable to regain custody of their children, and must communicate with state protective agencies in order to even see them. Some ex-offenders have lost children while incarcerated for long periods of time, or are seen as unfit parents due to their choices in the past. Is this really giving offenders a chance at a ‘normal’ life?
Think about the facts “the United States has the highest incarceration rate worldwide” (Mauer, 2001, as cited by Pager, 2002) and more ex-offenders are being released every day. Some ex-offenders have attained higher educational degrees, trying to better themselves while repaying what has been deemed a suitable punishment by a judge. Employment policies should be reviewed and revised before more companies face multi-million dollar lawsuits for discrimination.
The use of criminal background checks is an invasion of privacy regardless of someone’s race, sex, religion, national origin, or disability. The process of filtering through applications needs to be reviewed closely and those doing the hiring need to be aware that many ex-offenders truly are trying to live as ‘normal’ as a life as possible and their decision affects more than just the applicants.
Equal Employment Opportunity Commission, (n.d.). Facts about race/color discrimination. Retrieved on September 9, 2010 from www.eeoc.gov/eeoc/publications/fs-race.cfm
Emsellem, M. (2010). Cities pave the way: Promising reentry policies. [Electronic version]. National Employment Law Project. Retrieved August 24, 2010, from www.nelp.org
Hansen, F. (2010A). Blaming clients in background check lawsuits. Workforce Management. 89(7), 8. Retrieved August 24, 2010, from Business Source Complete database.
Hansen, F. (2010B). Burden of proof. Workforce Management. 89(2), 27-28, 30, 32-33. Retrieved September 1, 2010, from ABI/INFORM Global.
Lam, H., & Harcourt, M. (2003). The use of criminal record in employment decisions: The rights of ex-offenders, employers and the public. Journal of Business Ethics. 47(3), 237-252. Retrieved September 1, 2010, from Business Source Complete database.
Pager, D. (2002). Mark of a Criminal Record. American Journal of Sociology. 108(5), 937-975. Retrieved September 1, 2010, from WorldCat database.
Suk, J. (2007). Discrimination at will: Job security protections and equal employment opportunity in conflict. [Electronic version]. Stanford Law Review. Retrieved September 1, 2010, from www.stanfordlawreview.org