Ex-Cons Get Relief in New York City—Washington May Be Next

The movement to ban employers from asking about an applicant’s criminal background is spreading.

(Photo: Fair Chance New York/Facebook)

Jun 24, 2015· 3 MIN READ
Charles Davis is a writer based in Los Angeles. His work has aired on public radio and been published by outlets including Al Jazeera, Salon, and Vice.

“Just because you make a mistake doesn’t mean you should have to pay for it the rest of your life,” Marilyn Scales, a 52-year-old mother of six from the Bronx, told me over the phone. In the mid-’90s, she was arrested for heroin possession and served two years in prison. Although she has done her time, Scales has been paying for her mistake ever since, her criminal record, she believes, making her a pariah in the job market.

Scales is one of nearly 20 million Americans with a felony conviction. She hasn’t had any contact with the police for two decades. “I haven’t had no trouble at all,” she said. But the past haunts her. “It’s been really frickin’ hard,” she said, explaining how rejection after rejection from prospective employers helped keep her in an unhappy marriage. “I never got a call back,” she explained. So she stayed, having six kids to support. Four of them still live with her in a two-bedroom home.

Stories like Scales’ are not unusual. No country imprisons more people, or a higher percentage of its people, than the U.S. Public sentiment, however, is shifting to the idea that a criminal conviction should not make it so difficult for people to get on with their lives. Many cities and states are now heeding calls to bar employers from requiring job applicants to check a box indicating whether they have a criminal record.

“If one of the things people are supposed to do when they come out of incarceration is to find gainful employment and rebuild their lives, then a huge barrier to that is having their application just thrown away because it requires them to say whether they have a conviction,” said Nevantara Mehta, a senior staff attorney at the National Employment Law Project. More than 100 cities and 17 states—from liberal Massachusetts to conservative Georgia—agree and have adopted policies to “ban the box” on applications for public employment. Six states extend the ban to private employers. “It’s about delaying [the question] so that employers can judge applicants on their merits, as a whole person,” Mehta said, “not just focus and fixate on the mistakes that somebody made.”

So, Why Should You Care? People with felony convictions are more likely to commit another crime if they are unable to find employment. The U.S. imprisons about 2.2 million people, at great cost. California, for example, has recently spent more on prisons than on higher education.

Now the push for reform is gaining momentum at the federal level. In May, a group of 27 U.S. senators sent a letter to President Barack Obama calling on him to issue an executive order requiring “federal contractors and agencies to refrain from asking job applicants about prior convictions until later in the hiring process,” which they term a “fair chance” hiring practice. “These reforms would restore hope and opportunity to those with criminal records who face substantial obstacles in their quest to be productive members of their communities.” Advocates believe such an action by the president, making the federal government lead by example, would send a powerful message to other employers—states and cities and the private sector alike.

The federal Equal Opportunity Employment Commission ruled in 2012 that employers must show that discriminating against those with convictions is directly related to the nature of the work—suggesting it has been used by some employers to, consciously or not, further racial discrimination, as people of color make up a disproportionate number of those with criminal convictions. Last week the New York City Council became the latest legislative body to ban the box. Pending Mayor Bill de Blasio’s signature, employers will have to wait until they are prepared to offer a candidate a job before inquiring about that applicant’s criminal past. “I’m ecstatic,” Scales said. “It’s a going to open doors. I’m looking forward to maybe one day having a full-time job.”

But she knows that if employers don’t want to hire ex-convicts, they can still find a way to avoid doing so without running afoul of the law. While New York state bars employers from discriminating against applicants based solely on felony convictions, that sort of discrimination can be hard to prove.

A past arrest does not just affect employment. Felony convicts may not be able to receive federal student aid, and a felony conviction can bar someone from public housing. Several states also take away the right to vote from convicted felons. Just as many jurisdictions have started by removing the box on government employment applications before broadening it to the private sector, activists hope public officials will turn to broader criminal justice reform. Expunging criminal records so there’s nothing for employers to ask about would be a next step, and ultimately, perhaps changes will be made to the laws that have led to so many being convicted for nonviolent crimes in the first place.