The Box: A Collateral Consequence of a Criminal Conviction
April 13, 2017
by Meredith Osborne
Nationally, approximately 700,000 individuals are released from prison each year.1 But notwithstanding their incarceration, these individuals are our community members, neighbors, and veterans; and, like us, they have financial obligations, health concerns, and children and elderly parents to care for.2 While their successful reentry will undoubtedly require a confluence of community support networks, one of the most difficult challenges these individuals will face is obtaining gainful employment.
With increasing frequency, employers are utilizing criminal background screening processes to exclude individuals with prior felony convictions and arrests from further consideration.3 Typically, this preliminary filtration is accomplished through a simple check-box included on a standardized employment application, which asks applicants to confirm the existence of any pertinent criminal history. If the job applicant checks the box, thus confirming the existence of his or her criminal history, an employer may automatically disqualify that applicant from further consideration notwithstanding the applicant’s meritable qualifications.
In this regard, criminal history screenings present an often insurmountable hurdle for individuals re-entering society after a felony conviction or arrest. Although obtaining employment soon after release is essential to an individual’s successful re-entry, screenings impede that very success and may even contribute to the likelihood that an individual will re-offend, since “[e]xtensive research shows a relationship between unemployment and recidivism. Generally, an employed person with a criminal record is less likely to reoffend than an unemployed person with a criminal record.”4And, in addition to reducing an individual’s likelihood of reoffending, gainful employment reduces overall reliance on public welfare, improves public safety, and keeps families together.5 Conversely, recidivism is likely to lead to perpetual involvement with the criminal justice system, which in turn causes perpetual economic instability for such individuals and their dependents.6
For these reasons, and others discussed in greater detail below, many jurisdictions are wholly banning or restricting criminal background screenings, most frequently in the public sector.7 But Michigan currently has no state policy banning criminal background screening processes in any employment sector. However, before undertaking an analysis of Michigan employment law, it is critical to note at the outset that serious, violent felony convictions in Michigan — which, though infrequent, most commonly include home invasions, serious criminal sexual conduct, and armed robbery — often receive life sentences without the possibility of parole.8 Accordingly, these individuals are simply not among those attempting to find employment on re-entry, thus alleviating any concerns about negligent hiring of a murderer or rapist. This article concerns the other, significantly larger population of individuals who have committed less serious felonies — narcotics possession, drug distribution, forgery, and DUIs — who will inevitably receive a second chance.9
All people, including those who have made mistakes in their past, deserve an opportunity for redemption and a fair opportunity to be considered on their merits in the job market. Yet, by effectively barring individuals with prior convictions from employment, criminal background screenings deprive them of that very prospect. In this regard, the check-box imposes a collateral penalty on individuals for crimes for which they have already served time and, accordingly, defies the retributive and rehabilitative purposes of punishment.
Michigan employers can do better.
Discriminatory Effects of Criminal Background Screening
There are less obvious and equally troubling aspects to criminal background screening practices aside from their recidivist consequences. In addition to stunting an individual’s ability to successfully rejoin society, criminal history screening policies mask, on an institutional level, an invidious form of racial discrimination. Indeed,
"it is well documented that criminal record rates are not evenly distributed throughout the population: African Americans and Latinos are disproportionately much more likely than their white counterparts to be arrested and convicted. FBI statistics reveal that African Americans accounted for more than three million arrests in 2009 (28.3% of total arrests), even though they represented around 13% of the total population in the past decade; whites, who have made up around 72% of the population in the past decade, accounted for fewer than 7.4 million arrests (69.1% of total arrests). As of 2001, 16.6% of African American adult males and 7.7% of Latino adult males have been imprisoned in their lifetime; that same statistic is 2.6% for whites."10
Therefore, because race is correlated with arrest and conviction, employers implementing criminal background screenings may inadvertently skew the racial composition of their hires in a facially discriminatory manner.11 And, racially skewed hiring practices render employers liable for discrimination under Title VII of the Civil Rights Act of 1964, which prohibits, among other things, racial discrimination.12 Title VII provides, in relevant part:
"It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."13
In addition to prohibiting overtly discriminatory hiring practices, Title VII has been construed to prohibit hiring practices that, while facially neutral, have a racially discriminatory effect.14
The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with enforcing Title VII.15 In its “Uniform Guidelines on Employee Selection Procedures,” the EEOC explicitly discourages employers from using criminal history screening practices, stating:
"The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory."16
Yet, notwithstanding the broad prohibitions on racially discriminatory hiring practices and the statistical relationship between race and incarceration, criminal background screenings have never been banned outright for causing racially discriminatory hiring outcomes. In fact, there are only two major cases where such screening was found to violate Title VII.17
The cases of Gregory v. Litton Systems, Inc. and Green v. Missouri Pacific Railroad Co. both involved an employer’s automatic denial policy for hiring individuals with prior convictions — without any consideration of the applicants’ qualifications, the date of conviction, or any other factors militating against automatic denial. In both cases, the job applicants were able to demonstrate that the screening process, in conjunction with the employer’s automatic denial policy, lead to stark racial disparities in hiring. In light of the plaintiffs’ evidence, the courts found that the automatic denial policy was illegal —not the criminal background screening process.18 To remedy the discrimination, the courts simply required the employers to, in the future, consider each job applicant on a more individualized basis where a prior conviction became an issue during the hiring process.19
The narrow and fact-specific outcomes of Gregory and Green afford no meaningful relief to those individuals seeking to obtain employment on reentry, but who are nevertheless prevented from doing so by criminal background screenings. Indeed, in the time since Gregory and Green, which were decided in the early 1970’s, “judgments have been almost uniformly grim for plaintiffs alleging that the consideration of criminal records disparately impacts blacks or [latino] job applicants.”20 Despite the futility of litigation, new remedies have become available — remedies that take into account both an employer’s trepidation in hiring an individual with a prior conviction and that individual’s interest in successfully rejoining society.
A Balanced Movement Towards Reform
The “Ban the Box” campaign is a leading legislative and advocacy movement aiming to, at minimum, curb employers’ use of criminal background screening checkboxes on job application forms.21 The campaign was founded in 2004 by formerly-incarcerated individuals and their families, who were confronted with criminal history screenings upon re-entry, which significantly limited their employment prospects.22 Instead of pursuing change via litigation, Ban the Box promotes legislation that narrows an employer’s use of the practice in a reasonable manner.23 The campaign also utilizes social advocacy by encouraging employers to voluntarily pledge to end or curb their use of such practices.24
In terms of Ban the Box’s legislative successes, numerous states have enacted laws limiting or proscribing criminal history screening. To date, at least twenty-four states have banned the box for public sector employers, including: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee, Vermont, Virginia, and Wisconsin.25 Even more impressive, so far, nine states have banned the box in the private sector as well.26
Typically, ban the box laws limit: “(1) what can be asked of prospective employees prior to their hire, (2) when the inquiries can be made, and (3) how far back into the criminal history record the employer can delve.”27 These restrictions strike an appropriate balance between legitimate concerns of an employer and the need for redemption and fair consideration of individuals on release. It accordingly makes sense that,
"[i]n a relatively short time, this movement for fair access to employment opportunities has gained impressive momentum. From 2013 to 2014, the number of jurisdictions adopting policies doubled. Now more than 100 million Americans — roughly one-third of the U.S. population — live in a jurisdiction with a ban-the-box or fair chance policy."28
As for its advocacy work, the campaign currently targets non-profit organizations, asking them to voluntarily pledge to end their use of the practice. Specifically, the campaign calls “for non-profit and social justice organizations and foundations to join the campaign, spread the word, and open up opportunities for people who have been in jail or prison.”29
In Michigan, however, Ban the Box has had no statewide legislative successes to date. Yet, the mission of Ban the Box is as urgent as anywhere else. In 2014, nearly fourteen thousand individuals were released from Michigan’s prisons and an additional ten thousand released on parole.30 That same year, over four thousand individuals returned to Michigan’s prisons.31 Aside from a few reentry programs scattered throughout the state, Michigan offers no wide-reaching, statistically effective programs to assist its residents in obtaining employment on reentry.
It is incumbent upon private employers in Michigan to seriously consider their complacence in the cycle of incarceration through their use of criminal background screening processes. The Ban the Box campaign poses the question of an employer’s commitment to ethics and justice, one that should be seriously engaged. As attorney and author Bryan Stevenson wrote,
"Each of us is more than the worst thing we’ve ever done. My work with the poor and the incarcerated has persuaded me that the opposite of poverty is not wealth; the opposite of poverty is justice. . . . I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned."32
By voluntarily pledging to curb their use of criminal background screening processes, employers can take a step in the right direction for Michigan families and the Michigan economy.
- National Employment Law Project, The Fair Chance/Ban the Box Toolkit, 39 (April 2, 2015) available at http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/.
- Cf. Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2017 (March 14, 2016) available at https://www.prisonpolicy.org/reports/pie2017.html.
- “A survey of human resource managers found that only approximately 50% of employers used criminal background checks as a screening mechanism in 1996; by 2003, over 80% were using them.” Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers' Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 198 (2014), citing Eric Krell, Criminal Background: Consider the Risks--And Rewards--Of Hiring Ex-Offenders, H.R. Magazine, 44, 48 (Feb. 1, 2012).
- The Kobayashi Maru of Ex-Offender Employment: Rewriting the Rules and Thinking Outside Current "Ban the Box" Legislation, 85 Temp. L. Rev. 921 (2013) (citing Legal Action Network, National Blueprint for Reentry: Model Policies to Promote the Successful Reentry of Individuals With Criminal Records Through Employment and Education 13 (2008) (noting that people with criminal records are “three times more likely” to recidivate when they are unemployed); Donald R. Stacy, Limitations on Denying Licensure to Ex-Offenders, 2 Cap. U. L. Rev. 1, 3 (1973) (noting unemployment as a primary factor in high rate of recidivism); Christopher Uggen, Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism, 65 Am. Soc. Rev. 529, 542 (2000) (concluding that “[o]ffenders who are provided even marginal employment opportunities are less likely to reoffend than those not provided such opportunities”); Christopher Uggen & Melissa Thompson, The Socioeconomic Determinants of Ill-Gotten Gains: Within-Person Changes in Drug Use and Illegal Earnings, 109 Am. J. Soc. 146, 179 (2003) (concluding that “[a]s offenders gain more lawful opportunities ... their illegal earnings quickly diminish”); Stephen J. Tripodi et al., Is Employment Associated With Reduced Recidivism?: The Complex Relationship Between Employment and Crime, 54 Int'l J. Offender Therapy & Comp. Criminology 706, 708 (2010)). Research also makes clear that gainful employment promotes safer communities and family stability, and reduces reliance on public assistance. For instance, in 2014, unemployment of people with criminal histories cost the United States between $78 and $87 billion dollars. See, e.g., Rebecca Vallas and Sharon Dietrich, One Strike and You’re Out How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records, Center for American Progress (December 2014), available at https://cdn.americanprogress.org/wp-content/uploads/2014/12/VallasCriminalRecordsReport.pdf
- National Employment Law Project, The Fair Chance/Ban the Box Toolkit, 39-41 (April 2, 2015), available at http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/.
- For more information on national recidivism rates, see Matthew R. Durose, Alexia D. Cooper, Ph.D., Howard N. Snyder, Ph.D., Bureau of Justice Statistics, Recidivism Of Prisoners Released In 30 States In 2005: Patterns From 2005 To 2010 – Update (April 22, 2014), available at https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986.
- National Employment Law Project, The Fair Chance/Ban the Box Toolkit, 39(April 2, 2015) available at http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/.
- John T. Hammond, The Top 50 Felonies, Mich. B.J., 40 (December 2007).
- Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers' Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 198 (2014), citing Eric Krell, Criminal Background: Consider the Risks--And Rewards--Of Hiring Ex-Offenders, H.R. Magazine, Feb. 1, 2012, at 44, 48.
- Recently, for example, Pepsi’s criminal background screening process lead to a multi-million dollar settlement with rejected job applicants, since Pepsi’s policy disproportionately prevented racial minorities from being hired. See Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers' Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 198 (2014), citing Eric Krell, Criminal Background: Consider the Risks--And Rewards--Of Hiring Ex-Offenders, H.R. Magazine, Feb. 1, 2012, at 44, 48 (citing Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans, Equal Employment Opportunity Commission (Jan. 11, 2012), archived at http:// perma.cc/0VfwDetidmj); see also, e.g., J.B. Hunt Agrees to Settle EEOC Race Discrimination Case Regarding Criminal Conviction Records, Equal Employment Opportunity Commission (June 28, 2013), available at http://perma.cc/0xa8eWmUVYf.
- See 42 U.S.C.§ 2000e.
- 42 U.S.C. § 2000e-2(a)(1).
- George Rutherglen, Disparate Impact Under Title VII: An Objective Theory of Discrimination, 73 Va. L. Rev. 1297 (1987).
- Johnathan J. Smith, Banning the Box but Keeping the Discrimination?: Disparate Impact and Employers' Overreliance on Criminal Background Checks, 49 Harv. C.R.-C.L. L. Rev. 197, 200 (2014), citing EEOC, Strategic Plan for Fiscal Years 2012-2016 3 (2012).
- 29 C.F.R. § 1607.3 (emphasis added).
- See Gregory v. Litton Systems, Inc.,316 F. Supp. 401 (C.D. Cal. 1970), modified, 472 F.2d 631 (9th Cir. 1972); see also Green v. Missouri Pacific Railroad Co., 381 F. Supp. 992 (E.D. Mo. 1974), aff'd in part, rev'd in part, 523 F.2d 1290 (8th Cir. 1975).
- Alexandra Harwin, Title VII Challenges to Employment Discrimination Against Minority Men with Criminal Records, 14 Berkeley J. Afr.-Am. L. & Pol'y 4, 12 (2012).
- About: The Ban the Box Campaign (Last visited March 12, 2017), available at http://bantheboxcampaign.org/about/ (last visited March 8, 2017); see also The Kobayashi Maru of Ex-Offender Employment: Rewriting the Rules and Thinking Outside Current "Ban the Box" Legislation, 85 Temp. L. Rev. 921 (2013) (“The ‘Box’ in ‘Ban the Box’” refers to the check-box format used by employers to request criminal history information from applicants.”).
- The Kobayashi Maru of Ex-Offender Employment: Rewriting the Rules and Thinking Outside Current "Ban the Box" Legislation, 85 Temp. L. Rev. 921 (2013).
- Roy Maurer, Ban the Box Movement Goes Viral, Soc. for Human Res. Mgmt. (March 10, 2016), available at https://www.shrm.org/resourcesandtools/hr-topics/risk-management/pages/ban-the-box-movement-viral.aspx.
- Ibid., see also Colorado Chance to Compete Act (HB17-1305), which proposes to ban criminal history discrimination in the hiring process by private employers.
- The Kobayashi Maru of Ex-Offender Employment: Rewriting the Rules and Thinking Outside Current "Ban the Box" Legislation, 85 Temp. L. Rev. 921 (2013).
- National Employment Law Project, The Fair Chance/Ban the Box Toolkit (April 2, 2015), available at http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/.
- About: The Ban the Box Campaign (last visited March 8, 2017), available at http://bantheboxcampaign.org/about/
- Michigan Dept. of Corrections, 2014 Statistical Report, C-11, D-2 (Updated June 16, 2016), available at https://www.michigan.gov/documents/corrections/MDOC_2014_Statistical_Report_-_2015.07.02_493514_7.pdf.
- Ibid. at C-81; see also ibid. at E-3.
- Bryan Stevenson, Just Mercy: A Story of Justice and Redemption (2014).
Meredith Osborne graduated from Grand Valley in 2010 and the University of Michigan Law School in 2016. She currently clerks for Chief Judge Alan M. Loeb of the Colorado Court of Appeals and, this fall, will begin working as a Deputy Public Defender for the Colorado State Public Defender’s Appellate Division. At Michigan, Meredith worked as a student attorney and research assistant for the Michigan Innocence Clinic and, while at GVSU, served as a student instructor for the Community Working Classics Program. She hails from Grand Rapids.