Buying into Ban the Box: An Educational Framework to Reduce Employer Bias Against African American Applicants with Criminal Records

Every year, over 600,000 people are released from prison. Among this group are fathers, mothers, sons, daughters, cousins, and friends who seek to successfully reintegrate back into society. Upon release, many ex-offenders hope to obtain gainful employment. To increase their opportunities, they obtain high school diplomas, college degrees and/or vocation certificates. Unfortunately, finding employment with a criminal record is one of the main roadblocks in their efforts to successfully reintegrate. Ex-offenders face indirect discrimination when they apply for jobs, specifically during the criminal background check stage of the hiring process. Best case scenario, criminal background checks ensure safety in the workplace for both employers and customers/clients. However, in some situations, these background checks are unreasonable because employers deny employment opportunities to applicants who have any type of conviction on their record. Employers actions in these scenarios may violate ex-offenders’ civil rights. There is a strong correlation between employment and low recidivism rates. Ex-offenders with either none or limited gainful employment opportunities have an uphill battle to effectively reintegrate. Without gainful employment opportunities, they feel pressured to reoffend and obtain more convictions on their record. Within the last few years, “36 states and over 150 cities and counties have adopted a “Ban the Box” policy.” Prior to the adoption of these policies, employers applied blanket policies to exclude ex-offenders from the job market by saying things such as “people with criminal records ‘need not apply.’” In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) created the 2012 U.S. Equal Employment Opportunity Commission guidelines which advised employers to give these individuals conditional offers and assess each of them through an individualized assessment. The guidelines also advise employers to consider several factors, including: “the nature and gravity of the offense or conduct; the time passed since the offense or conduct occurred and/or completion of the sentence; and the nature of the job held or sought.” EEOC guidelines are not law, they are guidelines the agency advises employers to utilize during the hiring process. To give ex-offenders in the State of California a fair chance to reintegrate back into society, legislators enacted the Fair Chance Act in 2017, which is part of the “Ban the Box” movement that is taking place throughout the United States. This law uses EEOCs guidelines and applies its policy to public and private employers in the state with at least five employees and it is enforced by the California Department of Employment and Fair Housing. Unfortunately, the policy has not fixed the problem. This is because the initiative does not take employers perspectives into consideration. From the day it took effect until May 2019, there were 312 complaints related to the Fair Chance Act. The number of violations related to this law are more than likely higher, but many people do not file complaints because they want to avoid conflict and move forward in life. This Comment will examine the legal problems African Americans with criminal records face within the State of California in their efforts to obtain gainful employment. To educate employers about the law and reduce employer bias, this paper suggests an annual workshop for employers called Effective Second Chance At Life-A Training for Employers (“ESCALATE”) . The purpose of ESCALATE is to establish an effective way to communicate with employers about their rights and responsibilities within the hiring process and address employers subconscious bias against applicants with criminal records, particularly people of color. This training will serve both employers interest and the publics interest by educating employers on how to avoid more discrimination lawsuits while advancing the “Ban the Box” movement respectively.