More Work to Do on Fair Chance Hiring
Decades of policies promoting mass incarceration in the United States have exacted a devastating toll across the country: Today, an estimated one in three Americans has a criminal record.
A criminal record can serve as a permanent barrier to economic security. People with criminal records face persistent challenges accessing essential services, such as housing, education, food assistance, and employment. People of color – who, because of targeted policies, racial and ethnic bias, and other structural disadvantages – are more likely to have a criminal record, and even more likely to face barriers to these services.
In recent years, policymakers on both sides of the aisle have begun to acknowledge that comprehensive criminal justice reform is necessary to reduce incarceration rates and recidivism, and ensure that returning citizens can successfully reenter their communities with equitable access to employment and basic services. Among those reforms are so-called fair chance policies, which include record clearing, ban the box, and others.
Ban the box – removing the box on an employment application that requires applicants to disclose their criminal history – has grown in popularity over the last two decades. Research shows that employers that ask applicants whether they have a criminal record are 63 percent more likely to call back the applicants who do not. Perhaps unsurprisingly, the stigma of a criminal record is even worse for African Americans, who are half as likely to get a call back or a job offer than a white person with a criminal record.
Hawaii became the first state to pass legislation banning the box in 1998. The law prevents both the state and local governments, as well as private sector employers, from inquiring about an applicant’s criminal history before a conditional offer of employment has been made. Since then, 28 states, along with 150 cities and counties, have implemented ban the box laws and policies. Most of these policies only apply to government employers. A smaller share applies to private sector employers as well.
The Center for American Progress recently released a report examining the progress that federal contractors have made in implementing ban the box. Federal contractors are required to hold off on asking applicants about their criminal history, in accordance with guidance issued by the Equal Employment Opportunity Commission (EEOC), which states that an employer may be in violation of the Civil Rights Act if their neutral hiring policy disproportionately excludes a group protected under the law, and if the practice is not “job related for the position in question and consistent with business necessity.”
CAP partnered with the Equal Rights Center (ERC) to examine how contractors were implementing the policy. Among the 50 largest federal contractors, only six directly inquired about the applicant’s criminal history on the employment application – which is clearly inconsistent with fair chance policies.
However, research did uncover that across all companies, it was often difficult to ascertain how a criminal record would be treated during the application process. Many companies did not explain their criminal records policies up front, requiring applicants to go through the entire application process before finding out how the employer might treat their record. Employers were also unclear about what a criminal records check would entail, or when in the application process the inquiry would take place. This lack of clarity puts an unnecessary burden on applicants with a criminal record trying to navigate a difficult process.
CAP’s analysis highlights the need for employers to take steps to more effectively implement ban the box, and to be more transparent to prospective employees about their hiring process regarding criminal records.
While these changes will ensure that more individuals with criminal records can access the labor market, policymakers and employers shouldn’t stop at ban the box. Policymakers should start by engaging in a multi-pronged approach to fair chance hiring. This includes comprehensive ban the box policies for both public and private employers, providing greater employment opportunities for returning citizens, record-clearing, establishing access to supportive services, and facilitating the sharing of best practices.
Employers, for their part, should make it easier for applicants to review their background checks for accuracy, allow applicants to provide evidence of rehabilitation or mitigation, and fully implement the best practices outlined by the EEOC.
The damage inflicted by the carceral state in America will take an all-hands-on-deck approach to unravel. Fair chance policies can ensure that individuals who have already been touched by the justice system have a fair shot to move on with their lives.
Angela Hanks is the associate director of Workforce Development Policy for Economic Policy at American Progress.