When Dwyane Jordan got busted four years ago on felony drug-peddling charges, he was thankful to get probation and addiction treatment rather than prison time.
What he didn’t bargain for was the haunting effect that being branded a felon would have on his ability lawfully to earn a living – a burden he shares with roughly 70 million U.S. adults who have criminal records. “It reminds me of ‘The Scarlet Letter,’” said Jordan, 43, of Washington, D.C.
Jordan’s criminal past comes up nearly every time he applies for a job, because most employment applications ask him to check a box if he has been convicted of a felony. He has been tempted to lie about his conviction, because he believes marking the box has prompted multiple employers to reject him in the past year. But if the employer runs a background check and learns the truth, he’d be disqualified anyway.
A criminal record is such a stumbling block to employment that many states, cities and counties are passing laws to remove the question from applications for government jobs. Increasingly, some are forcing private employers to ban the question, too.
So far this year, Delaware and Nebraska have passed legislation to “ban the box” from application forms for most state, city and county jobs. In the last five years, California, Colorado, Connecticut, Illinois, Maryland, Massachusetts, New Mexico, Minnesota and Rhode Island, and the District of Columbia have banned the box for most state jobs. Hawaii was the first state to ban the box in 1998.
Georgia Gov. Nathan Deal, a Republican, plans to ban the box from applications for most state jobs by executive order as soon as next month, according to spokeswoman Sasha Dlugolenski. Legislation is pending in New Jersey. And more than 60 cities and counties – from Indianapolis to Kansas City, Mo., to Alameda County, Calif., – have adopted similar laws for government employment. Rochester, N.Y., did so in May.
Hawaii, Massachusetts, Minnesota and Rhode Island have extended the ban to include private employers. San Francisco did it in February. And the Baltimore City Council last month voted to impose the rule on businesses with 10 or more employees. Some of the nation’s biggest employers, such as Walmart and Target, also have banned the box.
Tommy Wells, a member of the D.C. City Council, wants Washington to extend the city’s 2010 law banning the box on city employment applications to private businesses.
“The biggest challenge (people returning from prison) face is getting housing and employment,” Wells said. “(Banning the box) is one thing we can do to help.”
Such laws don’t prevent employers from rejecting applicants because of their criminal pasts. However, they typically prohibit asking the question or running a criminal background check until the first or second interview or until an offer is made. The goal is to prevent employers from blackballing people based solely on their criminal background.
Postponing the question gives a prospective employee an opportunity to explain the circumstances of the crime, to point out how long it has been since it was committed and to present evidence of rehabilitation.
“You’re not required to hire anyone,” said Michelle Rodriguez, a lawyer with the National Employment Law Project, one of several nonprofit groups that have been pushing ban-the-box legislation. “This is about letting people get their foot in the door and not being automatically disqualified.”
States and localities typically exempt jobs in law enforcement, child or nursing care, schools or other areas in which other laws require background checks for safety or security reasons. The same is true for jobs in the private sector that require background checks for licensing, such as drivers or day care workers.
Some laws say employers cannot ask about misdemeanors, arrests without convictions or convictions that are expunged or annulled. They don’t allow the checks without the applicant’s permission. Some say applicants cannot be disqualified if their convictions don’t relate to the type of work they’d be doing.
Several factors have converged to drive the growing movement to ban the box. Chief among them is the huge number of people who have criminal records.
NELP’s estimate that 70 million U.S. adults have arrest or conviction records is based on federal Bureau of Justice statistics compiled from federal, state and local law enforcement, and courts. And that’s a conservative figure, Rodriguez said. Tougher sentencing laws, especially for drug offenses, have swelled that total.
In Washington, D.C., about 8,000 people are released from prison every year, according to Wells of the D.C. Council. In D.C., which has a large African-American population, black men comprise a disproportionate share of that total. The same holds true around the country: A 2010 study by the Pew Charitable Trusts (which funds Stateline) found that one in 87 working-age white men was incarcerated, while the numbers were one in 12 for African-Americans and one in 36 for Hispanics.
Similarly disproportionate figures prompted the U.S. Equal Employment Opportunity Commission in 2012 to update guidelines for hiring people with criminal records. The guidelines stop short of ban-the-box laws, but they warn employers they could violate federal civil rights laws if they reject an African-American applicant based on his criminal record but hire a white one with a comparable record.
Similar to many state laws, the guidelines urge employers to consider the seriousness of an applicant’s crime, the time that’s passed since conviction and the nature of the job.