Under the Fair Chance Act, it is unlawful for employers to rescind a job offer unless the applicant’s offense directly relates to the job or suggests that employing the person will pose an unreasonable risk to people or property. In July of last year, the act was expanded to include amendments that further benefit job candidates and current employees with open, pending criminal cases.
New York’s Fair Chance Act is just one effort born out of the movement to Ban the Box, a campaign created by the California-based grassroots organization All of Us or None. In 2004, Ban the Box emerged as a potential avenue for addressing myriad forms of employment discrimination by demanding change to how people with conviction records are treated during the application process for housing, jobs, and educational programs. Oscar Flores, a national organizer at All of Us or None, says the organization utilized Peace and Justice Summits, or “action-oriented town halls,” to bridge the gaps between formerly incarcerated leaders and local stakeholders in San Francisco.
“We had directly impacted people talk to the board of supervisors and partners from foundations and educational institutions [so that] these folks [making policies] can hear from us directly about the issues that we face—not only the sob stories, but also the opportunities and directives we’re telling them for how to address the issue,” said Flores.
All of Us or None’s organizing earned their first Ban the Box win in San Francisco leading to partnerships across the state, the expansion of Ban the Box into the private sector, and campaigns across the country that would pave the way for legislation like New York’s Fair Chance hiring law. While 37 states and the federal government have since implemented their own policies, it hasn’t stopped outside criticism of the movement. Recent research has attempted to suggest that the policies can lead to unintended adverse outcomes for job applicants, whether they have a record or not. Some researchers suggest such outcomes result when Ban the Box policies butt heads with the lingering societal stigmas that fuel employers’ desire to avoid new hires with conviction or arrest records.
Flores admits it was also initially difficult for All of Us or None leadership to convince some of their membership that banning the box could succeed. Many had been demoralized by looking for employment while carrying the stigmas of having an arrest or conviction history. Additionally, leadership and advocacy around these issues rarely seemed to include people like themselves who had direct experience with being discriminated against for having a record.
“The discrimination that we’re facing was something that we had to deal with,” said Flores. “Having that audacity brought us a lot of recognition of our power, recognition of our organizing skills and organizing potential, and put us on the map.”
Fears over employer-held stigmas and ‘moving the goalposts’
Proponents of Ban the Box argue that delaying or completely eliminating questions regarding one’s conviction or arrest history can quell the anxieties of both job candidates and employers. The policies can reduce the likelihood that candidates will assume they will be automatically rejected due to their prior convictions and instead encourage them to apply for more jobs. For employers, it can serve as reassurance that they can take on candidates and retain existing employees with an arrest or conviction record.
Melissa Ader, an attorney at the Legal Aid Society’s Worker Justice Project, says that new amendments to New York’s Fair Chance Act include increased protections that particularly benefit employees who are arrested after they’ve secured their jobs by providing additional incentive for employers to retain them, regardless of having an arrest history.
“What this law says is an employer [isn’t] obligated to fire somebody who has an arrest or conviction record; in fact, it’s often unlawful for the employer to fire that person because of [that] record,” Ader said. “So it means that employers get to attract good employees and hold on to good employees, and that’s good for an employer’s bottom line.”
Ban the Box implementation differs from state to state, however, which can lead to a wide spectrum of results. Additionally, how social stigmas and prejudices related to histories of conviction and arrest affect one’s search for employment is often difficult to measure.
In a 2016 study conducted by Daniel Shoag and Stan Veuger, research found that Ban the Box policies are often followed by “upskilling,” or efforts made by an employer to increase the education or experience required for a position in an effort to “substitute away from criminal background questions to other signals of employee quality.” The research posits that such upskilling adversely impacts Black women, even those who do not have conviction histories themselves. The study is among a small handful of recent research that seeks to understand how Ban the Box policies hold up against an employer’s efforts to weed out candidates with conviction or arrest records by using other demographic factors as a proxy for the information that Ban the Box policies intentionally obscure.
A widely publicized 2018 research study from Texas A&M University and the University of Oregon suggests that in some cities, Ban the Box policies have led to adverse employment outcomes for young Black and Latinx men without conviction or arrest records due to “statistical discrimination.” In the absence of access to criminal records, the research argues, employers will use race and age as a proxy for criminality, discriminating against candidates they assume have conviction and arrest records. Publicity around these potentially adverse outcomes has been a boon for opponents of Ban the Box policies broadly and has provided fuel for campaigns to reverse or reject incoming Ban the Box policies.
Advocates like Flores contend that these critiques ignore how Ban the Box policies don’t create the social stigmas around arrest and conviction histories.
“It’s unfair, inappropriate, and wrong for critics of Ban the Box to say that we’re exacerbating discrimination,” said Flores. “The discrimination has always been there, and folks are just finding another way to do it.”
A closer look into these studies also suggests that media takeaways exaggerate backlash effects of Ban the Box initiatives. Older Black and Latinx applicants with or without conviction records see higher rates of employment in areas where Ban the Box has been implemented. Recent research targeting racial stereotyping in public employment sectors has failed to find evidence of statistical discrimination. For instance, in her 2017 nationwide study, Dr. Terry-Ann Craigie finds that Ban the Box policies have an overwhelmingly positive impact on public employment prospects for those with conviction records without having a detrimental impact on Black or Latinx applicants without records.
Overall, Ban the Box seems to have been significantly helpful in raising employment outcomes for applicants with criminal records. Research looking at employment among job applicants in Washington, D.C., following the implementation of Fair Chance hiring shows a 33% increase in the number of applicants with records hired. Of all new hires in the district, 21% were people with conviction and arrest records. Meanwhile, the number of job applicants with conviction records recommended for hire nearly tripled in Durham County, North Carolina, two years after legislation was passed, with over 96% ultimately getting the job.
For advocates like Reyes, the fight for anti-discrimination legislation is immensely personal and encompasses the grave implications a conviction record can have on one’s job search. When she returned home from prison in 1995, Reyes submitted countless applications, and no one called back for an interview.
“I didn’t even have an idea that this was what was happening to me until I was educated that for people with felonies it’s harder to get jobs,” said Reyes. “When I was on work release I was able to get a job—not a full-time job, but I worked a few hours a day until I finished parole, and then they let me go.”
Reyes was eventually able to find a string of part-time jobs, but they failed to provide the security needed to rebuild her life and take care of her children.
“I suffered, not knowing where I was gonna get food,” recalls Reyes. “I mean, I had food stamps, but that doesn’t last. I had four kids who were under 18. So it was rough for a while.”
Removing employment barriers for formerly incarcerated people offers public and personal benefits
Despite Ban the Box critics’ fears that companies will employ statistical discrimination against candidates with criminal records, advocates counter that employers do want to hire applicants with past convictions but don’t because of social pressures and taboos. Advocates argue that the expansion and normalization of Ban the Box initiatives can reduce stigma against the formerly incarcerated by removing the need to consider an applicant’s arrest and conviction history altogether.
“I think a lot of times employers see that somebody has an arrest or a conviction record on their background check, and they feel obligated to deny somebody that job or fire them simply because the person has an arrest or conviction record,” says Ader. “Especially [in the case of] a current employee, that’s bad for the employer because they’re gone.”
In pushing for Fair Chance policies, some initiatives have chosen to focus squarely on how Ban the Box can benefit a company’s bottom line. In an interview with B The Change, Leslie Crary, co-owner of Rubicon Bakers, a California-based bakery that strives to hire those with conviction records, suggested that Fair Chance hiring is a common-sense solution that companies should take advantage of.
“We’re not just doing this to be nice; we’re doing this to fill positions,” said Crary. “If you limit your hiring scope, you are going to unduly limit your hiring pool. From my point of view, why would you artificially narrow your pool of applicants?”
According to a 2017 ACLU report, research shows that when employees with conviction records are retained at higher rates, it alleviates ongoing recruitment and training costs in lower-wage white-collar industries. Further, the report notes employers who actively hire candidates with conviction records are eligible for federal tax credits that can reduce federal income taxes by as much as $9,600 per employee during their first two years of work.
Ban the Box policies can also arguably benefit public safety by reducing recidivism, but Flores says that what job-seekers gain in dignity and respect matters even more. Having a job and the ability to earn a living and provide for their families can assist with formerly incarcerated people’s journey to reintegrate into their communities.
“That’s very important for different things like self-esteem—providing for our children, and our families looking at us not as a burden but as an actual asset,” Flores said.
Appeals to empathy and common sense carry more weight when backed by legislation
Still, even Ban the Box advocates argue that these policies will yield the best results when implemented in conjunction with other legislative efforts. For example, Flores also supports Clean Slate legislation that expunges the criminal records of those with conviction histories, rendering those records a nonstarter if an applicant’s background is checked during their job search. Expungement can also create pathways into careers that require licenses or certificates that the formerly incarcerated are currently barred from obtaining. An egregious example is how incarcerated laborers—who are paid pennies to fight wildfires in California—are unable to pursue careers in firefighting upon their release because they’re not allowed to obtain EMT licenses.
Enforcement of implemented policies is also crucial to their success. Advocates say that the threat of levied penalties can pressure companies to cease discriminating against job applicants with arrest and conviction records.
“Expungement legislation is so important because so many employers violate the Fair Chance Act and violate anti-discrimination protections,” Ader said. “But if somebody’s conviction record stops showing up on their background check, employers can’t discriminate anymore.”
The Clean Slate legislation didn’t pass in New York this year, but the state does have other anti-discrimination laws that Ader feels can also strengthen the Fair Chance Act. Described by Ader as “one of the strongest anti-discrimination laws in the country,” New York’s Article 23-A prohibits employers from discriminating against job applicants or current employees due to a conviction record unless the offense directly relates to the job or poses a unreasonable threat to people or property. If an employer denies a candidate simply on the basis of their conviction record, they can be sued for discrimination.
Ban the Box may delay inquiries about one’s criminal record, but in the absence of the additional protection offered by laws like Article 23-A, employers can still deny an applicant work based on their record once it is revealed. Awareness about this law is crucial for ensuring that people with conviction records understand the full scope of their rights under the Fair Chance Act.
“A lot of times workers will come to me and say, ‘Well, I know that I can’t get a job because I had a felony conviction,’ and that’s just not true,” said Ader. “Since [Article 23-A was passed in] 1976, it has been unlawful for employers to simply deny somebody a job because they have a felony conviction. There might be certain jobs that are harder to get, but most jobs in New York state should be available to people with conviction records.”
‘I love the work’
Perhaps most important to increasing the effectiveness of Ban the Box is remembering its origins as a movement led by those most directly impacted. Ban the Box policies are spreading to more cities and states and are expanding beyond removing barriers to employment to include widening access to housing and educational opportunities. As the wave of support grows, some are concerned that allies and advocates who are not directly impacted by incarceration will make concessions that are ultimately neither strategic nor impactful.
“You’re always going to have to negotiate in the process of passing legislation, [but] we have a certain line that we will draw and won’t go beyond,” said Flores. “Unfortunately, [some] might cross that line very easily, so [Ban the Box] becomes a low-hanging fruit or symbolic law that won’t affect much. The end goal is much bigger.”
While the outcomes of implementing Ban the Box legislation can vary widely, what matters most are the perspectives of those whom the movement was designed to help. That includes people like Reyes, who stood on the front lines of advocating for Fair Chance hiring legislation in her state and found full-time employment just a few months after its passage. Reyes says that she cried when she got that first job.
“For the first time—I was 52 years old, and still didn’t have a full-time job—this was the first one in my life,” she said. “That was deep, and I became very emotional. I’m so blessed. I’ve come a long way. I didn’t give up.”
The challenges applicants with conviction records face can create a sense of urgency that forces those job-seekers to accept work in any field—regardless of whether it aligns with their passions or interests, or offers fair wages, benefits, and a safe working environment. Candidates with conviction records may be burdened with jobs that may be less desirable, may not lead to career stability, or may force them to choose between their well-being and the need for income to secure basic living needs.
A benefit of Fair Chance hiring that can’t be quantified is the opportunity to find work offering personal satisfaction, something that many job seekers without records often take for granted. Reyes now works for the city’s health department doing harm reduction. She meets with those hospitalized for drug overdoses, educates them on resources available to them, and connects them with care. It’s work that allows her to take care of her own family while guiding people out of the situations she herself has known intimately. The change to her life, both financially and personally, has been immense.
“I went from two and three part-time jobs to working for the City of New York in the health department,” Reyes said. “Peer support is what I do. I love the work because they’re people like me, and I understand them.”
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