An estimated 60,000 District of Columbia residents have criminal records. Roughly 8,000 return to the community each year after serving time behind bars.
And about half of them will be back behind bars within three years. One, though not the only reason is that they can’t get legal, paying work. And one reason they can’t is that their job applications get tossed before they’re read.
That’s going to change. And it ought to change their extraordinarily high unemployment rate — 46%, according to a 2011 survey. Here’s why.
Last week, the DC Council passed what’s commonly known as a “ban the box” bill. Like others of its kind, the new law prohibits generally employers from including queries about criminal records in their job applications.*
They thus can’t automatically screen out anyone and everyone who’s ever been arrested, charged and/or convicted of a crime. Nor, in the District’s bill, can they ask about any of these during interviews.
They may, however, ask about convictions — or conduct a background check — after they’ve made a conditional offer of employment, i.e., one contingent on what they learn about the candidate’s criminal offenses or other matters they’ve said they’d look into.
They may then withdraw the offer, but only for a “legitimate business reason.” For this, the law establishes criteria, e.g., the responsibilities the candidate would have, how long ago s/he committed the crime(s).
But they don’t have to explain an about-face, as they would have in the original version. Nor does the rejected candidate have a right to sue, though s/he can file a claim with the Office of Human Rights — a lot of hassle for minimal compensation, the DC Jobs Council said.
For these reasons, as well as others, the law isn’t as strong as it might be.
Employers with fewer than 11 workers get a free pass, for example. This, as the Employment Justice Center’s Deputy Director testified is a large loophole because even big projects in some industries, e.g., construction, often include small contractors.
But the bill is ever so much better than nothing. And it might have been nothing without the exemptions and other concessions to employer concerns.
In fact, it’s somewhat better than the revised version lead sponsor Councilmember Wells produced in an effort to accommodate the altogether predictable complaints from some business interests, e.g., the local restaurant association.
So count the about-to-be law as a piece of good news in the midst of so much truly terrible stuff.
The District will join the dozen states that have banned the box. And with a stronger law than most. Only four of the states cover private employers. And only one — Hawaii — unequivocally prohibits conviction history inquiries before an offer is made.
The law will surely open doors for some returning citizens — and citizens who returned some considerable time ago. It will also keep doors open for those who are working because the law extends similar protections to employees. Some, we know, have been fired when their criminal records came to light.
The law won’t be a cure-all, however. And no one, to my knowledge, thinks it will be.
The Center for Court Excellence survey cited above indicates some employment barriers beyond the scope of any “ban the box” law, e.g., lack of a pre-incarceration work history and/or in-demand skills and credentials.
There are others — extraordinary difficulties in getting housing, for example. Some Ban the Box Coalition members advocated an expansion of the law to remedy this. So there’s more work to do on the policy front.
But experience tells us that anti-discrimination laws can go only so far — even when they’re strongly enforced, which they generally aren’t. I rather doubt the District’s “ban the box” law will prove an exception, since it’s complaint-based.
Management consultant Wendy Powell argues that such laws “can provide false hope to candidates with a felony conviction” because their job histories will inevitably have a gap. And that, she says, is always a legitimate basis for inquiry.
Whether the criminal record emerges during an interview or, as she recommends, is preempted by voluntary disclosure, employers will have to give returning citizens a chance.
The same, I think, is true when they decide whether to exercise their “legitimate business interest” because they’ve got wiggle room if they’re predisposed to use it — not in all cases perhaps, but I can imagine many.
Ultimately, the success of the new law will depend on whether employers fully embrace the intent. The more that do, the more that will, I think.
* The bill exempts employers that provide programs, services and/or direct care to minors and “vulnerable adults.” This, I’m told, basically reaffirms a provision stating that the pre-offer provisions don’t apply when a federal or local laws and rules require consideration of an applicant’s criminal history.