Civil Disabilities in an Era of Diminished Privacy: A Disability Approach for the Use of Criminal Records in Hiring

Mass incarceration policies and the mass proliferation of criminal records and their ubiquitous use in hiring have severely limited the lifetime employment opportunities of the 70 million Americans with criminal convictions. Overbroad hiring screens drive recidivism by limiting opportunities to employment that would promote successful reentry into the workforce. Hiring practices that screen out those with criminal records also magnify the already potent employment discrimination experienced by African-Americans, who disproportionately have criminal records. Recent important strides have been made to grapple with this problem. Over the past decade, “Ban the Box” laws have passed in over 100 states and cities, prohibiting criminal record inquiries until after the initial employment application; and in 2012, the Equal Employment Opportunity Commission (EEOC) offered detailed guidance to employers clarifying the types of hiring screens that violate Title VII of the Civil Rights Act of 1964. These measures have led many employers to eliminate hiring screens that categorically exclude people with criminal convictions. But these reform strategies have had limited success in the unfinished business of facilitating the large-scale reentry of people with criminal convictions into the workforce. To accomplish this, reentry proponents must look beyond overbroad initial hiring screens and identify approaches that encourage employers to disregard criminal convictions unless they indicate an unreasonable risk to the workplace. This Article suggests that the legal norms for integrating people with disabilities into the workforce should serve as a model for how to better reintegrate people with criminal records into the formal labor market. Disability laws achieve integration with use of (1) privacy measures to shield highly stigmatizing medical information that is likely to be misinterpreted or misused; and (2) equal opportunity protections to reduce the stigma of a disability while encouraging contextualized assessments of any accommodations that a disability may require. These measures are equally applicable to the protection of individuals with criminal records and other civil markers of inferiority, such as poor credit histories.Specifically, a disability approach applied to criminal records would:(1) Restrict employer access to long-ago and minor convictions that do not predict future behavior by sealing or expunging these records, or otherwise prohibiting their disclosure for employment purposes;(2) Where criminal records may predict future behavior, permit their disclosure to employers after the applicants have been found qualified for the position and provided a conditional offer of employment; on condition that;(3) Employers only reject these conditional employees based on an individualized assessment that their criminal record history presents a genuine risk to the workplace that cannot be reasonably accommodated. There are two principle critiques of this approach. First, studies showing that employers who conduct background checks are more likely to hire African-Americans may lead critics to conclude that shielding criminal records from review would perversely harm African-Americans. Second, critics of privacy protections may respond that employers will bypass formal restrictions on criminal record inquiries by accessing criminal records informally. The approach recommended here is not in tension with the goal of reducing statistical discrimination against African-Americans, because it would permit employers to evaluate relevant conviction histories before deciding whether to hire. The concern that nexus protections will not sufficiently protect African Americans with criminal records can be addressed by identifying means to limit subjectivity in hiring. A second critique would view skeptically any project that restricts employers’ access to criminal history records given the employer’s incentives to avoid compliance with the law, such as the ease in accessing this information informally. But restrictions on the review of sensitive data have succeeded in other contexts and employers may welcome such restrictions here, because shielding irrelevant criminal convictions from employer access would limit employers’ negligent hiring liability. Taken together, these critiques suggest that the success of this approach would benefit from guidance from criminal justice agencies regarding the relevance of a criminal history and the availability of third-party assessments and of government incentives to promote the employment of candidates whose criminal records indicate a genuine risk. While a disability approach would improve the job prospects of people with minor and long-ago criminal convictions, its effectiveness as a reentry tool for people with recent or repeat convictions depends on an accurate assessment of whether and how to accommodate risk. An employer’s reasonable accommodation of the heightened risk of a conviction history, and the targeted use of government hiring incentives for applicants who present a heightened risk, relies on the accurate use of criminal convictions to predict job performance and counterproductive work behaviors. In addition to enforcing privacy and antidiscrimination guarantees, therefore, government agencies should encourage further research into the predictive value of criminal convictions. Further research into which criminal convictions present a significant workplace risk would assist employers in understanding whether accommodating an applicant is an undue burden, and assist criminal justice agencies in determining which conviction histories merit hiring incentives, and which should be shielded from public view on privacy grounds.