The most fundamental prerequisite for empowerment is the ability to earn an adequate living.
Angela Davis

An employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on African Americans and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population. Millions of individuals with past criminal histories, particularly those who are African-American and Latino, often face significant barriers to successful reintegration, mainly when attempting to enter or reenter the labor market.  For many, gainful employment is unattainable not only because of the social stigma of having a criminal record, or laws and policies that needlessly limit both the quantity and quality of job opportunities, but as a result of race discrimination that remains prevalent in the labor market.  The collateral consequences of a criminal record have exacerbated the racial discrimination that exists in the labor market and have further limited large numbers of people of color from being empowered by earning an adequate and sustainable living wage.  The United States needs to not only address racial prejudice that is overt but challenge and amend policies that permit employers to arbitrarily preclude anyone with a criminal history from a job. These policies very often appear to be race-neutral but are not because of the disparate impact the criminal justice system has on communities of color.

The United States is the world’s leading jailer.1  Our criminal justice policies over the past three decades have led to mass incarceration of our citizens and have had a disproportionate affect on people of color.  African American and Latino men make up a higher percentage of the prison and jail population than their representation in the population of the United States.  At midyear 2006, black men comprised 37 percent of all individuals held in custody in the nation's prisons and jails; approximately 4.8 percent of all African American males in the general population were in prison or jail, compared to 1.9 percent of Latino males and 0.7 percent of white males.  Among African American men age 25 to 34 years, more than 11 percent were incarcerated in prison or jail.2  In addition, African American and Latina women are entering the prison system in record numbers nationally.

The criminal justice policies of our time — from arrest to prosecution3 to post-conviction treatment4 — have decimated families and communities of color.   Incarceration has serious social and economic consequences to families and communities.  It often causes a total destruction of the family functioning—the structure, financial relationships, income levels, and emotional support systems.5 Furthermore, it “disrupts parent-child relationships, alters networks of familial support, and places new burdens on government services such as schools, foster care, adoption agencies, and youth serving organization.”6

For generations, people of color have faced racial discrimination in the workplace.  While such discrimination is illegal in today’s market place, it nonetheless continues under the guise of “race-neutral” policies that discriminate against individuals who have a criminal record.  The increasing numbers of legal barriers that limit employment opportunities for people with criminal records continue to keep large segments of qualified individuals with criminal histories, most of whom are people of color, locked out of the labor market and deprived of the opportunity to become a tax-paying citizen with the ability to care for themselves and their families. 

A Historical Perspective

In American society, employment and economic growth are essential factors in achieving the American dream.  However, African Americans have historically been closed out of equal employment opportunities -- beginning with their noted inequality derived from the Constitution and slavery, followed by the Black Codes and Jim Crow.  While the Civil Rights legislation of the late-1960s created at least the appearance of a fair, just and equal society, there has remained a competing sentiment in this country to keep races “separate and unequal.”   As described in the “Unchaining Civil Rights: Equality” paper, “Even after the Emancipation Proclamation and civil rights amendments, racism and economic exploitation that were the foundation for slavery remained intact.”7

Racial discrimination has severely limited employment opportunities for African Americans for much of the 20th century.  It was not until the 1970s that African Americans were able to compete for job opportunities with white Americans.  But even with these new opportunities, people of color continued to confront barriers to integrating labor unions, private corporations, and government agencies.  Affirmative action policies leveled the playing field to some extent, making equal opportunity appear to be an obtainable goal.  However, as a result of our criminal justice policies, we have lost ground in the quest for genuine equality particularly in the field of employment.

In the 1970s, on the heels of the successes of the Civil Rights Movement, our nation’s criminal justice policies took a dramatic turn.  The goal of rehabilitation fell into disfavor and the goal of retribution ascended as the so-called “War on Crime and Drugs” dominated our political rhetoric.  It soon became evident that African Americans and other racial minorities were the casualties of this so-called “war” – the dramatic policy shift and the accompanying policing practices have resulted in the significantly disparate numbers of people of color in the criminal justice system.

It is bad enough that disproportionate numbers of African Americans and other minorities populate our jails and prisons.  But inequality is amplified by the fact that punishment does not end at the prison doors.  The collateral consequences of a criminal conviction endure for a lifetime, and when it comes to employment, the loss of opportunities fall disproportionately on people of color.with a criminal conviction who often face perpetual punishment.

Present Perspective: How Criminal Convictions are used to Create Barriers

As a result of the disproportionate impact of the criminal justice system on people of color, particularly African Americans and Latinos, the Equal Employment Opportunity Commission determined that policies that exclude individuals from employment on the basis of a criminal record could violate Title VII of the Civil Rights Act of 1964.8  As such, we cannot continue to ignore the impact policies that appear to be “race neutral” have on communities of color.  Devah Pager and Bruce Western’s audit study, “Race at Work: Realities of Race and Criminal Record in the NYC Job Market,” showed that employers overwhelmingly prefer job applicants who do not have a criminal record over those who do.  What was much more disturbing was the finding that white males who have a criminal record were perceived as more employable than African American males without a criminal record.

Only a few states prohibit employers from obtaining, asking about, or considering arrest and conviction records.  Fourteen states currently have some standard in place that applies to private and/or public employers and/or occupational licensing agencies for considering applicants with criminal histories.   Without any protections in place, applicants who have criminal records face many needless barriers to employment.  These barriers do not discern how old or how serious the applicant’s criminal record is, if the applicant’s criminal record is related to the job duties, or if the applicant poses a risk to the safety of others.  Nor do these barriers gauge an applicant’s commitment to rehabilitation and living a law-abiding life.  Rather, these barriers continue to punish individuals who have a criminal record while simultaneously destroying the hopes and dreams of those who genuinely seek to become law-abiding and productive members of the community.

It is critical that we create policies that encourage fair opportunities for qualified job seekers who have criminal histories.  Unless and until we do, we will continue to needlessly deny opportunities to people – most often people of color – thereby creating a permanent underclass of economically disadvantaged people.

It is critical that we create policies that encourage fair opportunities for qualified job seekers who have criminal histories.

Opening Doors to Employment: Remedies and Recommendations

At the Federal Level

  • Create a federal human rights standard that encourages employers to hire qualified applicants with criminal histories and prohibits flat bans against hiring qualified individuals with criminal histories.
  • Prohibit employers and other non-law enforcement agencies from inquiring about or using arrest information that did not lead to conviction or missing dispositions on criminal record reports issued by the Federal Bureau of Investigation.
  • Enact a federal standard based on recommendations outlined in the Equal Employment Opportunity Commission guidance on the use of background checks for employment purposes when screening applicants with criminal records.
  • Require all current and future legislation that authorizes the disqualification of individuals with criminal records to include a waiver/appeal process whereby the applicant can challenge inaccuracies in criminal record reports, present evidence of rehabilitation and provide other mitigating information relevant to their criminal history and rehabilitation.
  • Increase and improve employer incentives for hiring qualified individuals with criminal histories
  • Implement a federal Justice Reinvestment program that ensures that corrections savings are reinvested into the communities most affected by high incarceration rates to support  reentry and community-driven crime prevention programs.
  • Create a federal employment standard that limits how long a criminal record can be considered.  The period of consideration of the criminal record should be based upon the severity of the individual’s criminal history (i.e. misdemeanors-3 years, felony--5 years), and should be supported by social science research that measures the risk of re-offending.
  • Require the federal Office of Personnel Management (OPM) to monitor federal hiring practices and report to Congress annually on federal employment policies concerning people with criminal records.  The annual report should include the number of individuals with criminal records who applied for position, the number of individuals hired or denied, the types of jobs they applied for, and whether or not a denial for the position was based on their criminal record.
  • Encourage the federal Bureau of Prisons to develop educational and training programs that are tied to high growth labor markets and industries.

At the State Level

  • Advocate for legislation that automatically seals/expunges arrests that never led to conviction and minor convictions after a reasonable period of time.
  • Advocate for legislation to lift automatic bars to employment, occupational licenses, public    housing, and political enfranchisement.
  • Advocate for legislation that prohibits across-the-board employment bans based on arrest or conviction records and require employers to assess applicants individually on their merits.
  • Encourage state prisons to develop educational and training programs that are tied to high growth labor markets and industries.
  • Implement state-level Justice Reinvestment program that ensures that corrections savings are reinvested into the communities most affected by high incarceration rates to support community reintegration, reentry and community-driven crime prevention programs.
  • Advocate for legislation that prohibits employers and other non-law enforcement agencies from inquiring about or using information about arrests that did not lead to conviction.

1. The Pew Center on the States, “One in 100:  Behind Bars in America 2008,” February, 2008, at 5. 
2. Sabol, William S., Minton, Todd D. & Harrison, Paige M. Bureau of Justice Statistics, "Prison and Jail Inmates at Midyear 2006." Retrieved 4/12/08 from http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim06.pdf.
3. Markowitz, Michael M. & Jones-Brown, Delores, Eds. (2000).  The System in Black and White: Exploring the Connection between Race, Crime, and Justice.  Connecticut: Praeger.
4. Mauer, Marc and Chesney-Lind, Meda, Eds. (2002).  Invisible Punishment: The Collateral Consequences of Mass Imprisonment.  New York: The New Press.
5. Travis, Jeremy, Cincotta McBride, Elizabeth, and Solomon, Amy L.  (Updated 2005).  Families Left Behind: The Hidden Costs of Incarceration and Reentry.  Retrieved from http://www.urban.org/uploadedPDF/310882_families_left_behind.pdf. Washington, DC: The Urban Institute.
6. Ibid.
7. National H.I.R.E. Network and Center for Community Alternatives (April 2008). Unchaining Civil Rights: Equality.
8. Equal Employment Opportunity Commission, Notice No. N-915, Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964 (February 4, 1987).

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