More Meanspirited Marginalization

The California Office of Administrative Law (OAL) has approved new regulations concerning criminal background checks for employment. These regulations went into effect July 1, 2017. While employers now have an additional burden of compliance, people with criminal records continue to be punished after they’ve served their sentences.

What happened to the notion that serving time pays one’s debt to society? It’s not true. Payment of a debt to society comes with strings attached for the payer—the formerly incarcerated person—that are often meanspirited. An example is California, which has enacted rules that can keep formerly incarcerated people from working.

In a persuasive and logical paper published in the International Journal of Offender Therapy and Comparative Criminology, the authors cite a Texas study and argue “that increased time crime-free is an indicator of positive behavior change that should be supplemented with clinical interventions to help formerly incarcerated persons maintain the initial motivation associated with employment.”

Having a satisfying job is directly related to self-esteem and a sense of pride. This is not a complex sociological phenomenon. Anyone who has spent time looking for work knows the impact of the loss of self-worth and faulting oneself for not being able to support a family.

The new California regulations addressing background checks “require employers to demonstrate that any criminal history information sought is job-related and consistent with a business necessity.” There are two ways employers can demonstrate that the consideration of criminal history information is appropriately tailored to the job:

• Employers may conduct an individualized assessment of the circumstances and qualifications of applicants/employees excluded by the conviction screen. Before taking an adverse employment action, such as refusal to hire, the employer must give the individual notice of the disqualifying conviction and a reasonable opportunity for the individual to respond and demonstrate that the criminal history exclusion should not apply to his/her particular circumstances. The employer must consider this information and determine whether an exception is warranted.
• An employer may demonstrate that its “bright-line” conviction disqualification policy (one that doesn’t contain an individualized assessment of the facts) properly distinguishes between applicants and employees that do and do not pose an unacceptable level of risk and that the conviction being used has a direct and specific negative bearing on the applicant/employee’s ability to perform the duties or responsibilities necessarily related to the position.

This meanspirited squeeze of ex-offenders is reminiscent of the problems faced with finding housing. I discuss this issue in my post entitled Hobson’s Housing Choice for Ex-Offenders. After personally being denied the right to submit a rental application for an apartment because of my criminal past, my legal research revealed that the rental agent had violated the law. The housing law and the criminal background regulations sound very similar in their intent to deprive ex-offenders of the basics needed to survive in society.

Housing: Legal Authority—The California Fair Employment and Housing Act (FEHA) and the Unruh Act

The rental agent violated FEHA and the Unruh Act by immediately disqualifying me for residency based on my criminal background because the refusal to allow me to apply did not relate to my ability to meet tenancy obligations. Is that standard ambiguous enough for you?

Employment: New Regulations

If employers can demonstrate that the consideration of criminal history information is appropriately tailored to the job, employment can be denied. Is that standard vague enough for you?

Conclusion

The new criminal background regulations are murky at best and vindictive at worst. Over time the regulations will be tested in the courts. There’s a smell of unconstitutionality in the air.

Meanspirited marginalization feels wrong. It is wrong. What has happened to equal protection under the law by providing a hands-up approach to men and women in need of a break?

I welcome your perspective on this. Please share your thoughts in the comments section.

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