#BlackLivesMatter and #BanTheBox: The Negative Impact of Civil Disobedience on Job Prospects and How to Correct It* By Carly Calhoun

Carly Calhoun

By

#BlackLivesMatter and #BanTheBox: The Negative Impact of Civil Disobedience on Job Prospects and How to Correct It*

In the wake of high profile police shootings of unarmed black men, women, and children, the U.S. is in the midst of what some are calling a new Civil Rights Movement, otherwise known as the Black Lives Matter Movement.[1] Not unlike the Civil Rights Movement of the 1960s, police are arresting people for non-violent civil disobedience,[2] where charges are generally for disorderly conduct or obstruction.[3] Most of us look at those arrested in the 1960s as heroes working for equality, and many now look at Black Lives Matter in the same light. What may not be taken into account is how these arrests and criminal convictions will negatively affect the protestors’ future job prospects. However, there is hope in the Ban the Box Movement.

The Ban the Box Movement urges employers to eliminate “the box” asking about criminal history on job application forms in an effort to eliminate discrimination based on arrest or conviction records.[4] According to the National Employment Law Project (NELP), “there are an estimated 70 million U.S. adults with arrests or convictions that often make it much harder to find work.”[5] The stigma attached to an arrest or conviction either leads employers to toss out applications on which people honestly told of their criminal history, or it discourages prospective employees with a criminal history from applying to jobs, suspecting they will not get hired or even called back.[6] In effect, employers with “the box” arbitrarily decline to even interview qualified and willing workers. And prospective employees, thus discouraged, tend to recidivate.[7]

While Title VII of the Civil Rights Act does not include those with a criminal history as a protected class for hiring decisions and employment,[8] the EEOC recognizes that criminal background may be an aggravating factor for discrimination when combined with biases about an applicant’s race or other protected class status.[9] And employers may be liable for disparate impact claims when “evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.”[10] Because minorities are arrested at disproportionate rates compared to whites, employers’ blanket exclusions in hiring those with arrests or convictions disproportionately impact African Americans, Hispanics, and Latinos,[11] thus potentially violating Title VII.

These statistics show that those arrested while working in the Black Lives Matter Movement—predominantly young millennials of color[12]—will likely face more discrimination in employment by participating in protests aimed at ending discrimination in other areas. Some seem to view this barrier to employment as a just consequence of civil disobedience. For instance, one psychologist said about Occupy Wall Street demonstrators, “Protesters’ traffic blocking showed . . . bullying behavior displayed by sociopaths. [] Employers avoid hiring job applicants who feel thrilled harming and bullying people.”[13] However, many, if not all, great leaps in civil rights in the past two centuries involved some form of civil disobedience.[14] While one makes sacrifices for a great cause, to sacrifice the ability to sustain oneself through legitimate employment once the dust has settled should not be one of them.

While the Ban the Box movement is aimed at reducing stigma and providing true rehabilitation and restoration of civil rights to those exiting prison,[15] it has the greater impact of allowing people to stand up for their rights without fear of negative lifelong repercussions. The chances of widespread adoption of the elimination of “the box” look good as major employers like Target, Wal-Mart, and more recently the conservative party backers Koch Industries have stopped asking potential employees about their criminal history.[16] With the addition of 16 states and over 100 cities that have passed measures banning “the box” on public (and sometimes even private) sector job applications,[17] there is clear bi-partisan support for this type of criminal justice reform. The federal government would be wise to pass similar measures, therefore aiding our economy by strengthening the workforce and reducing the rate of recidivism nationwide. The added benefit will be to lessen discouragement of people from participating in our nation’s living history of non-violent civil disobedience to reach societal ideals.

* This inspiration and idea for this blog post came from the Facebook post of Robert Reich, Chancellor’s Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, available at https://www.facebook.com/RBReich/photos/a.404595876219681.103599.142474049098533/1061467950532467/?type=1 (last visited Sept. 25, 2015).

[1] See Brooke Obie, Op-Ed: Radical Black Christians in the New Civil Rights Movement, NBC News (Aug. 29, 2015, 10:45 PM ), http://www.nbcnews.com/news/nbcblk/radical-black-christians-new-civil-rights-movement-n417871, and Gene Demby, The Birth of a New Civil Rights Movement, Politico (Dec. 31, 2014), http://www.politico.com/magazine/story/2014/12/ferguson-new-civil-rights-movement-113906.

[2] See, e.g., Taylor Wafford, Police Arrest Dozens of Black Lives Matter Protesters, Body Slam Man in Ferguson, Newsweek (Aug. 10, 2015, 9:29 PM), http://www.newsweek.com/ferguson-police-black-lives-matter-protests-361765.

[3] Bill Quigley, Legal Briefing for People Considering Non-Violent Civil Disobedience, Ctr. for Const. Rts. 2, available at https://ccrjustice.org/sites/default/files/assets/Legal%20Briefing%20for%20CD%20NSM.pdf (last visited Sept. 25, 2015).

[4] All of Us or None, http://www.bantheboxcampaign.org (last visited Sept. 25, 2015).

[5] Nat’l Emp. Law Project, Fact Sheet: “Ban the Box” is a Fair Chance for Workers with Records, 1 (July 2015), http://nelp.org/content/uploads/Ban-the-Box-Fair-Chance-Fact-Sheet.pdf.

[6] “Research affirms that a criminal record reduces the likelihood of a job callback or offer by nearly 50%.” Id, citing Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 5, 937, 955 (March 2003), available at http://scholar.harvard.edu/files/pager/files/pager_ajs.pdf.

[7] Id.

[8] 42 U.S.C. §2000e-2 (2012) (prohibiting discrimination in hiring based on “race, color, religion, sex, or national origin”).

[9] U.S. Equal Emp. Opportunity Comm’n, EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (April 25, 2012), available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#IIIB.

[10] Id.

[11] Id.

[12] See, e.g., Khury Petersen-Smith, Black Lives Matter: A New Movement Takes Shape, 96 Int’l Socialist Rev. (Spring 2015), http://isreview.org/issue/96/black-lives-matter.

[13] Michael Mercer, Ph.D., Occupy Wall Street Protesters Destroy Their Job Hunting Prospects, Hcareers, http://www.hcareers.com/us/resourcecenter/tabid/306/articleid/1031/default.aspx (last visited Sept. 25, 2015).

[14] See, e.g., Libr. of Cong., Tactics and Techniques of the National Woman’s Party Suffrage Campaign, available at https://www.loc.gov/collections/static/women-of-protest/images/tactics.pdf (last visited Sept. 25, 2015) and The Tex. Pol. Project, Civil Disobedience and Non-Violent Action, https://texaspolitics.utexas.edu/archive/html/ig/features/0607_01/slide1.html (last visited Sept. 25, 2015) (highlighting the tactics of the Boston Tea Party and abolitionists, among others).

[15] See supra note 4.

[16] Marianne Levine, Koch Industries to Stop Asking About Job Candidates’ Criminal History, Politico (April 27, 2015, 1:37 PM) http://www.politico.com/story/2015/04/koch-industries-brothers-criminal-history-job-applicants-ban-the-box-117382.

[17] Id.

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