THE COLLEGE HILL INDEPENDENT


Boxed Out

Revisiting Employment After Felony Convictions

by by Megan Hauptman

On many job applications, below availability and above the signature line, stands a question that may appear innocuous at first glance: have you ever been convicted of a felony? If so, give details and date.

If you haven’t been convicted of a felony, this question is rote: tick the no box, move on to sign and date the application. If you have a criminal record, “that box is a scarlet letter,” says Elton Simpson, who spoke in favor of striking the question from job applications at an event hosted by Providence’s Direct Action for Rights and Equality (DARE) on January 31. DARE’s event, a speak-out in support of legislation to prevent employers inquiring into applicant’s conviction record before an interview, sought to raise awareness of the difficulties many people face in procuring employment after being released from prison.

At DARE’s event, and at a press conference held at the Rhode Island Statehouse this past Wednesday, several formerly incarcerated people testified about the difficulties they have had in finding employment, often not even receiving a follow-up phone call after submitting an application that identified them as having a criminal record. John Prince, who works with DARE advocating for legislation to strike the question, told an audience at the Statehouse his story. In 2009, he submitted a resumé for a job online and was asked to come into the company’s office for an interview. After being told he was perfect for the job and filling out a pile of forms, the employer noticed that Prince had checked the box that said he had a felony conviction. “He froze. He said, I can’t use you. You checked the box, I can’t use you,” Prince remembers. “Now I’m leaving there with an amputated spirit. There’s no anesthetic for an amputated spirit. Riding that bus coming back, I was frustrated. It had been 12 years, and that box was still haunting me.”

The legislation in question, referred to as “Ban the Box,” has been introduced into the Rhode Island legislature twice before, in 2011 and 2012, but has never passed. The current bill has three main points: employers cannot ask about felony convictions on applications and must give applicants a chance to explain any convictions at the interview stage; employers are not allowed to deny jobs to people based solely on their criminal records (unless the crime is directly related to the job); and employers are cleared of liability for hiring people with a felony record.

In April 2009, the city of Providence eliminated criminal history questions on job applications for publicly-funded city jobs. This decision was a response to investigations by Mayor Cicilline’s office on the difficulty people with criminal convictions face in transitioning back into the workplace. Now, applicants for city jobs can be asked to sign a waiver for a background check only once it has been determined that they meet the minimum criteria for the position. Although this doesn’t prohibit employers from investigating applicants’ criminal histories, it does make the process more transparent and helps prevent employers from passing people over for jobs before giving them a chance to explain their specific circumstance or prove their qualifications. Ban the Box’s sponsors, state senator Harold Metts (D-Providence) and state representative Scott Slater (D-Providence), want to extend these rules to private employers as well.

Both Metts and Slater have supported “Ban the Box” in all its iterations, and were joined at Wednesday’s press conference by several other legislators who see this bill as important for their constituents. State representative Michael Chippendale, a Republican from Foster, spoke to the bipartisan appeal of the bill, touching on its economic benefits. “As an employer, as a business owner, I’ve hired a lot of people. And I’ve hired a lot of people who’ve had records. And those people had something to prove to me...and they were going to work hard to overcome those things that people wanted to stereotype them with, so from a business perspective it makes sense.” Chippendale also pointed out that the high costs of incarceration, combined with a 60 percent recidivism rate, cost tax payers huge amounts of money, “but we’re going to save that money when we put good, hardworking people who made a mistake back to work.”

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In April of this year, the federal Equal Employment Opportunity Commission (EEOC) announced that it would begin to crack down on employers that discriminated against job applicants with criminal histories. Deciding not to hire applicants based purely on their criminal record is considered illegal discrimination under Title VII of the 1964 Civil Rights Act, but many employers are unaware of this stipulation, or don’t know how it applies to them. It is illegal for employers not to hire someone based purely on the fact that they have a criminal record, but if they determine that the offense is “job-related for the position in question and consistent with business necessity,” the criminal record can play a factor in their decision.

Confused? So are employers. Along with its announcement that it would more aggressively prosecute employers who were in contempt of Title VII, the EEOC issued a hefty set of enforcement guidelines, with these recommendations for best practices: don’t ask about felony convictions on job applications, take into consideration the nature of the crime and the time elapsed since the conviction, and conduct individualized assessments. This last clause is both the most burdensome and arguably the most important.

To protect against discrimination lawsuits, the EEOC suggests that employers “(a) inform the individual of his/her exclusion based on a criminal record, (b) provide the individual an opportunity to demonstrate that he/she should not be excluded, and (c) consider whether the individual assessment shows that the exclusion policy should not be applied.” The EEOC also suggests that employers keep detailed records of why they decided to hire one applicant over another, especially in cases where criminal records were considered.

Deeming a conviction relevant to the specific job is a confusing matter, and the EEOC’s guidelines spell out a variety of ways to take someone’s criminal history into account. They even provide specific examples of how to use this information to make decisions, walking employers through scenarios in which the criminal conviction could be considered relevant, and in what situations employers would or would not be protected from discrimination lawsuits.

However, as the EEOC language acknowledges, these are guidelines, not law, and they leave a lot of room for situational interpretations and variable court applications.  Assessing an employer’s intent to discriminate is difficult, and employers’ views of which crimes constitute a risk to their business vary greatly. Many employers not only worry about discrimination lawsuits, but also lawsuits from co-workers or clients as well. “Companies can be sued by their employees if they hire someone who harms his coworkers,” pointed out David R. Carlin III, speaking on behalf of the Northern Rhode Island Chamber of Commerce, in a hearing on Ban the Box in 2011.

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Some employers in Providence openly disregard EEOC guidelines for acceptable use of criminal records in making hiring decisions. Spectator Management Group (SMG), a private company that runs the Dunkin’ Donuts Center, as well as other convention centers and arenas in New England, is one of the largest facility management groups in the world. They employ hundreds of stagehands and technicians for the events and conferences hosted at the Dunkin’ Donuts Center, and they have a blanket restriction on hiring anyone with a criminal record.

This restriction is relatively recent, according to Mike Araujo, the business agent for the International Alliance of Theatrical and Stage Engineers (IATSE), the union that represents workers for all of the major Rhode Island venues, as well as those who work on local TV sets and at events like Waterfire. This type of seasonal, contractual employment has often attracted people with criminal convictions, many of whom have trouble finding long term employment. “Historically, someone getting out of jail could go either to the docks or to us, and be put to work almost immediately,” Araujo says. “We never had a problem [with criminal records]...We don’t deal with kids, we don’t deal with money. It’s just fielding shows.”

This changed six years ago, when SMG took over management of the Dunkin’ Donuts Center and started asking for background checks on all new stagehands, blacklisting all of the union members with criminal records. “I went to management and asked them for letters for each one of these people [that were rejected for work], explaining why they aren’t qualified,” said Araujo. “They told me that their criminal records removed their qualification for the job. Some of these men and women had been working as stagehands for 30 or 40 years.”

IATSE decided to challenge the blanket restriction; Araujo continued to send people with criminal records to work at the Dunkin’ Donuts Center, knowing that they couldn’t collect their checks. He found many volunteers who were willing to go without pay on a few jobs to protest SMG’s policy. The union has recorded over $400,000 in a pool of unpaid wages with this tactic, almost equivalent to the union’s yearly payroll. They hope to win these unpaid wages from SMG through union negotiations, using legislation such as Ban the Box and the EEOC guidelines to make the case that SMG’s policy is blatant and illegal discrimination. Araujo and other IATSE union leaders aren’t looking to instigate a major lawsuit against SMG, because it would drain the union’s resources. Araujo’s tactic intended “to make the process so burdensome for them that they just gave up on it.”

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SMG is contracted by the City of Providence to manage the Dunkin’ Donuts Center, and “part of their corporate charter is that they have to be working for meaningful employment in the community,” says Araujo. “If they’re denying up to 25 percent of the minority population work, they are actively working to destroy the community they are hired to serve.”

The criminal justice system disproportionately punishes black and Latino workers, and restrictions on ex-felons’ ability to work also disproportionately affect these same populations. Title VII of the Civil Rights Act seeks to prevent two types of employment discrimination: disparate treatment (treating someone differently on the basis of race, gender, nationality, etc.) and disparate impact (practices that disproportionately harm racial or ethnic groups even without obvious intent to discriminate). Even though civil rights laws do not explicitly restrict the use of criminal records in making hiring decisions, the EEOC recognizes the disparate impact that excluding individuals with records has on minority communities.

In January 2012, Pepsi paid the Minnesota branch of the EEOC $3.13 million in a settlement around their blanket discrimination against hiring people with felony records. In a press release, the EEOC states that they sued Pepsi because they found “reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII.”

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Six years after SMG instituted their policy, discrimination on the basis of criminal history is receiving local and national criticism, and Araujo believes that negotiations with SMG for the years of back pay will be successful. “They’re afraid of the potential lawsuit,” he says.

In Worcester, Massachusetts, where SMG runs the DCU Center, the same restrictions on workers with criminal records don’t apply. “I could turn one guy down for work in the morning [in Providence] and send him to Worcester in the evening and he’d be allowed to work for the same company,” Araujo says.

In 2010, Massachusetts passed a law prohibiting public and private employers from inquiring into criminal histories not directly relevant to the job position. State employers and private companies contracted by the state (like SMG) cannot inquire into a job applicant’s criminal record until after making a conditional offer, and must allow applicants a chance to explain all convictions during an interview. In Boston, “ex-offender status” is now a classification protected under the civil rights laws of the city. Araujo and other activists in Providence consider Massachusetts’ various legal protections to be a model.

Massachusetts’ legislation is particularly progressive, but seven other states have banned the box for public, state-funded jobs, and have defined more clearly how criminal records may be considered in hiring decisions. In Providence, some private employers choose not to ask questions about criminal convictions; Araujo cites the Providence Performing Arts Center as one example of a local business that doesn’t inquire into workers’ conviction records.

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On top of being stigmatized in looking for employment, formerly incarcerated individuals face barriers and discrimination in finding public housing, qualifying for welfare, and receiving educational loans. The effect of a prison sentence extends far beyond the time served. State representative Anastasia Williams (D- Providence) spoke to the limitations individuals face after leaving prison: “From one box to another box. That’s not what it’s supposed to be. If you remove that box, it removes one of the many barriers individuals have to face after doing their time.”

Sentences should end when individuals have fulfilled them, agrees Representative Slater, saying “I’ve never seen a judge sentence anyone to a lifetime of unemployment.”

MEGAN HAUPTMAN B’14.5 may appear innocuous at first glance.