Last month, Los Angeles joined a growing group of U.S. cities taking steps to end hiring discrimination based on a job applicant’s criminal history. The “Los Angeles Fair Chance Initiative for Hiring” ordinance took effect on January 22 and is arguably the strongest and most progressive so-called “Ban the Box” law in the country.
Approximately one-third of all American adults have some type of criminal record. According to data provided in 2016 by the Obama Administration, 12 million people each year are released from state and federal prisons as well as local jails. Most emerge with the immediate goal of finding employment – an effort that is often stymied by employers who insist on criminal record checks as a threshold means of weeding out otherwise qualified applicants. Since African Americans and Latin Americans are already incarcerated at disproportionately high rates, this has a devastating impact on populations that already face widespread employment discrimination based on race.
While the federal Fair Credit Reporting Act (FCRA) and similar state laws prohibit employers from conducting criminal background checks without the permission of an applicant or employee, they do nothing to prevent discrimination based on a voluntarily disclosed criminal record. Until very recently, in most jurisdictions, nothing kept employers from automatically discounting applicants with any type of criminal history, regardless of whether the applicant was qualified, or even if the criminal record had any impact on his or her ability to do the job. This essentially resulted in structural discrimination, and a complete roadblock preventing persons with criminal records from even being considered for jobs.
A Tough, Progressive Ordinance that Fights Discrimination
In an attempt to eliminate this discrimination, several U.S. cities, including Philadelphia, New York, and San Francisco, have passed “Ban the Box” ordinances. The Los Angeles law represents one of the most job applicant-friendly versions.
LA’s ordinance bars both city contractors and private employers with 10 or more employees from asking an applicant if he or she has a criminal record until after a conditional offer of employment has been made. “Applicant” is construed very broadly, and includes individuals who work part-time, contractors, and even those involved in vocational or educational training. There are a few exceptions, such as if the position involves working with children or carrying a firearm, but the law is otherwise quite clear.
Moreover, the ordinance also provides that employers cannot independently search the internet for conviction history information. Employers must perform a written assessment evaluating the specific aspects of a job applicant’s criminal history before denying employment. The ordinance also protects an applicant against retaliation for complaining about an employer’s lack of compliance with the law or for seeking to vindicate his or her rights under the law (which also provides for a private right of action).
Los Angeles Councilman Curren Price, who drafted the ordinance, cited research in a memo to council that revealed nearly half of applicants who disclose a criminal record on a job application or during an initial interview are automatically removed from consideration, no matter how qualified they might be for the position. for that reason, LA’s law requires employers to remove all questions about past criminal history from job applications, and they are not permitted to inquire about it during initial interviews. As with most progressive “Ban the Box” ordinances, LA’s still permits some type of criminal record check, but crucially only after the employer makes a conditional offer.
Said Price before council’s final vote, “Without the stigma of a criminal record, my hope is that job candidates will soon be evaluated by their skills and their qualifications and their merits.”
The Work Continues
It is heartening to see the long fight for the rights of those with criminal records to secure meaningful employment take shape in the Los Angeles ordinance. This has been an important issue for Outten & Golden, and the firm has contributed significantly to the effort, primarily by pursuing litigation under Title VII of the United States 1964 Civil Rights Act and state and city laws.
In 2016, for example, we settled a lawsuit against the Department of Commerce that the firm brought on behalf of African-American and Latino job applicants who applied for temporary positions with the U.S. Census Bureau. In the course of this litigation, we litigated whether the Census Bureau, which is part of the Department of Commerce, improperly used FBI criminal arrest and conviction records, which were often inaccurate, to reject African Americans and Latino Americans. We alleged such individuals were also never given the opportunity to address mistakes in the records or given ample information or time to engage with the Bureau about the alleged disqualifying arrest records, in violation of their civil rights.
Under the settlement, the Department of Commerce created a $5 million fund to be used to correct inaccurate conviction records and otherwise deal with stale convictions of our clients. The Census Bureau also agreed to engage industrial and organizational psychologists to develop processes to ensure applicants are not eliminated based on past criminal records that have nothing to do with their abilities to do the jobs.
Outten & Golden continues to serve as an outspoken advocate on this issue, partnering with the NAACP and the Lawyers’ Committee for Civil Rights Under the Law, for example, in litigation against employers in New York City that bar applicants with felony convictions from even applying for the positions they offer.
Persons with criminal records deserve an equal chance under the law to secure gainful employment and obtaining employment is the one sure way to reduce recidivism. The fact that this type of discrimination disproportionately affects minority populations makes its eradication a goal worthy of our collective efforts.
