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A Criminal Record and a Fair Shot at a Job
Nineteen states and 100 cities and counties forbid public agencies — and in some cases, private businesses — to ask job applicants about criminal convictions until later in the application process, when they have had a fair chance to prove their qualifications. Last week, President Obama added the weight of the federal government to this movement when he ordered federal agencies to stop asking most people about convictions at the outset.
He should not stop there. The president could send another powerful message by issuing an executive order that extends the fair-chance requirement to government contractors and that uses the approach that has been laid out by the federal Equal Employment Opportunity Commission. Without employment, after all, people who have served time in jail will remain trapped at the margins of society.
Seventy million Americans have criminal histories that can limit their job opportunities or shut them out of work altogether. This sometimes means they had an arrest that never led to conviction, faced charges that were eventually dismissed or committed minor crimes in the distant past.
Fair-chance — or “ban the box” — laws have gained traction in both liberal and conservative states as elected officials and businesses have come to understand that shutting people out of work weakens families and communities. It also leaves qualified people out of the applicant pool.
Scores of municipal governments have expressly postponed the criminal history question until the applicant has been given a conditional job offer — a policy that the federal government should follow. And giant companies like Walmart, Target and Koch Industries have removed conviction questions from job applications.
The Equal Employment Opportunity Commission gave the fair-chance movement a lift in 2012 when it reaffirmed a longstanding ruling that bars employers from automatically turning away applicants based on their arrest and conviction records. Rather, the agency said, employers should take into account the age at which a person committed the offense, the nature of the offense and whether it is directly related to the job.
The agency also made it clear that arrest alone is not proof of illegal conduct or grounds for exclusion of employment applicants. Two developments made the need for this new guidance urgent: the rise of computerized arrest and conviction records that often contain mistakes and the sharp increase in the number of people who have been arrested for minor offenses as a result of “zero tolerance” policing.
A year after that clarification, a federal commission led by then-Attorney General Eric Holder Jr. recommended making the federal government a “model employer” in the way it treats people with criminal records.
President Obama’s new directive gets the government closer to that. But an executive order that instructed federal contractors to abide by the employment commission’s guidance would fulfill that promise.
The president, who no doubt wants to avoid another dust-up with Congress over executive authority, would ideally like lawmakers to pass a pending “ban the box” bill. That would be the right thing for Congress to do. But since Congress is unlikely to act, Mr. Obama should go ahead and complete the job he has begun.
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