GOOD BUSINESS or EMPLOYMENT DISCRIMINATION? BARRIERS to EMPLOYMENT FOR PEOPLE WITH CRIMINAL HISTORY
by Tyner Helms
Obtaining meaningful employment is one of the most important aspects of life to people in this country. Fundamental to the “American dream” is the notion that if you work hard and apply yourself, you will be able to provide a good life for you and your family. This has become increasingly difficult in today’s society for individuals with a criminal background. Many employers ask about an applicant’s criminal history on job application forms. Furthermore, in the information age that we currently live in, businesses can easily access an applicant’s criminal record by conducting background checks. This is significant due to the fact that many employers have a policy of immediately disqualifying applicants with criminal records without taking into account the nature of the crime, the amount of time that has passed since the conviction, or the qualifications of the particular individual. A conviction is not always needed to disqualify an applicant from employment. Many job applications ask if the individual has merely been arrested for a crime, even if the charges were eventually dropped.
Some restrictions only apply to applicants who have committed a felony, or that have actually been convicted of a crime. Many felony convictions have blanket provisions attached to them, resulting in non-violent, first time offenders to be grouped in with violent criminals. In addition, a felony is a crime that is punishable by imprisonment for a period of one year or more, which includes many seemingly minor crimes. For example, in Maryland, it is a felony to injure a racehorse, or to possess fireworks without a license. In addition, some states have laws prohibiting licensing boards from issuing licenses to applicants with felony convictions. This presents an enormous barrier to employment because the number of occupations subject to licensing has grown substantially in recent history. Doctors and lawyers are not the only professions that require a license. Many occupations that are attractive to “low-skilled workers” are not regulated by licensing boards, such as ambulance drivers, barbers, and contractors. Although hiring policies of this nature are rampant among businesses, these restrictions are not limited to the private sector. Several states have placed an absolute ban on public employment for ex-felons, and other ban ex-felons from working for the state for a certain amount of time after their release from prison.
Employment restrictions for people with a criminal background have faced equal protection challenges under the Fourteenth Amendment of the Constitution. Unless a statute burdens a “fundamental right” or discriminates against a “suspect” class of people, it will be evaluated using a rational basis review. Under rational basis scrutiny, the statute will be upheld as long as it is rationally related to a legitimate government objective. This is an extremely low standard to meet. Applying this analysis to the situation at hand, employment is not considered a “fundamental” right under the law, and felons are not a “suspect” class. Therefore, a law banning ex-felons from employment only has to pass rational basis scrutiny. Protecting the health, welfare, and safety of the public is a legitimate government objective, and generally speaking, restrictions on employment for ex-felons is rationally related to achieving that purpose. This means that employment restrictions on criminals have a high likelihood of succeeding against an equal protection challenge.
There does seem to be potential success in challenging these occupational restrictions under the Due Process clause of the Fourteenth Amendment. In Schware v. Board of Bar Examiners, the New Mexico Bar denied admission to an applicant partly because of his arrest record. The Supreme Court held that there must be some rational relationship between the occupational qualifications of the bar and the applicant’s fitness and capacity to perform the job
to comply with Due Process, and reversed the bar’s exclusion of the applicant.
The Equal Employment Opportunity Commission (EEOC) has issued regulations attempting to reign in the discriminatory hiring practices of employers. Under the EEOC, employers are prohibited from discriminating based on race, color, religion, sex, or national origin because it is considered disparate treatment. However, individuals with a criminal record are not included in the protected categories of people under the guidelines. As long as employers apply policies of disqualifying applicants with a criminal background neutrally, they will not violate the EEOC regulations. For example, if a business declines to hire an African-American person with a criminal conviction, it cannot choose hire someone who is white with a similar conviction. The EEOC also prohibits discrimination by disparate impact, meaning that hiring practices that disproportionately affect protected racial or ethnic groups can potentially violate the regulations even if there is no intent to discriminate by the employer. Although the disparate impact provision seems effective, employers can often get around it. Instead of disqualifying applicants based on the arrest or conviction itself, employer often consider the conduct underlying the arrest, concluding that such conduct makes the individual unfit to perform the job. Minorities are particularly affected by this loophole because they are statistically more likely to be arrested or convicted than someone who is white.
State legislatures have begun to make progress on this issue. Fourteen states have passed laws prohibiting public employers from having across the board bans on hiring people with criminal backgrounds, forcing them to consider the individual’s qualifications to perform the job. Five states have similar regulations that apply to private employment. In addition, twenty-one states have passed laws that force licensing boards to require a rational relationship between the licensed occupation and an applicant’s criminal record to justify denying him a license. That being said, most states still allow employers to implement blanket bans on hiring applicants with an arrest or conviction, which leaves many people with enormous obstacles to employment.
Since the financial meltdown in 2008, finding a job has been more difficult than it has been in decades, and disqualifying someone simply because of an arrest, without taking into account other circumstances, only adds to the burdens of job hunting. Studies have shown that the most important factor in whether an ex-felon stays out of prison after his release is the ability to obtain meaningful employment. It is understandable for employers to consider criminal convictions when making hiring decisions. Every business wants employees who are trustworthy and can perform the job competently. But applicants should not automatically be disqualified from employment because of an arrest without an analysis of the individual circumstances surrounding the criminal record. Instead, employers should consider factors such as the individual’s job qualifications, the type of crime committed, the amount of time that has passed since the conviction, and the behavior of the applicant since the conviction. Other possible solutions for these employment discrimination problems exist as well. Employers concerned about hiring someone with a drug-related conviction can condition employment on mandatory, random drug testing. State legislatures can prohibit employers from inquiring about an arrest on a job application if it did not lead to a conviction, or allow arrest records to be expunged if the charges were later dropped so that it will not show up on a background check. Lawmakers can also follow in the steps of almost half of the states and require a conviction to be related to the specific employment sought before allowing licensing boards to deny an applicant based on their criminal background. Retribution for wrongful acts is not the only purpose of the justice system. It is also aimed at rehabilitating people so that they can contribute to society in a positive way and pursue the benefits of freedom after they have been held accountable for their actions. To
say that someone with a criminal record is automatically unfit for employment is a slap in the face to our nation’s correctional system, and there remains much progress to be made to reverse this trend.
 Elena Saxonhouse, Book Note, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 Stan. L. Rev. 1597, 1599 (2004).
 Id. at 613.
 Id. at 613.
 Id. at 612
 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 16-17 (1973).
 Schanuel v. Anderson, 546 F. Supp. 519, 524 (S.D. Ill. 1982); see also United States v. McKenzie, 99 F.3d 813 (7th Cir. 1996).
 Hawker v. New York, 170 U.S. 189, 198 (1898).
 Schware v. Board of Bar Examiner, 353 U.S. 232 (1957).
 EEOC Enforcement Guidance, U.S. Equal Employment Opportunity Commission (April 25, 2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
 Robb Mandelbaum, U.S. Push on Illegal Bias Against Hiring Those With Criminal Records, The New York Times (June 20, 2012), available at http://www.nytimes.com/2012/06/21/business/smallbusiness/us-presses-on-illegal-bias-against-hiring-those-with-criminal-records.html?_r=0.
 Elena Saxonhouse, Book Note, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 Stan. L. Rev. 1597, 1611 (2004).