Formerly Incarcerated
Nearly one in three adults (31.7 percent) in the United States is estimated to have a criminal record on file with the states that will show up on a routine criminal-background check.97 In the United States, it is communities of color—particularly African-American and Latino workers—who are most negatively impacted by the criminal-justice system.98 More and more jobs are simply unavailable to these workers due to huge increases in criminal-background checks by private and public employers.
Demographics. A 2008 study found that Latinos are incarcerated at a rate more than twice that of whites, while African Americans are incarcerated at a rate six times that of whites.
Discrimination. Draconian mandatory minimum sentences and expanded numbers of crimes considered felonies have resulting more than 13 million people experiencing life-long discrimination because of their past criminal record. While felony records create the biggest hurdles for people returning to their communities, any criminal record—including old and non-serious offenses and arrests that did not lead to conviction—can cause serious problems for a job seeker.
Title VII of the Civil Rights Act of 1964 prohibits both disparate treatment and disparate impact. However, because of the disparate impact of the criminal-justice system on communities of color, the EEOC has found that "an employer's policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on [African-Americans and Latinos]." As such, EEOC policy prohibits employers from imposing blanket hiring prohibitions based on criminal records, and requires an individual assessment of whether the individual's criminal record is indeed "job related."
Despite this important federal protection, more than 60 percent of large employers reported that they would "probably not" or "definitely not" consider a job applicant for employment once they became aware that the individual has a criminal record. Further contributing to the disproportionate impact on communities of color is the finding that workers of color—particularly African-American men—with a criminal record are even less likely to be offered employment when compared with similarly situated whites. These discriminatory practices are creating a permanently unemployed class in our communities of color. It is estimated that 70 percent to 80 percent of all formerly incarcerated people in California alone are unemployed.
The lack of enforcement of Title VII of the Civil Rights Act by the federal government has lead to increasing state restrictions of hundreds of jobs—often entry-level positions—further excluding communities of color from the workforce. The lack of enforcement combined with the increased use of background checks is creating a permanently unemployed class in our communities of color.
Legal Context. A California Supreme Court decision from 1971 provides support for the position that barriers to employment for people with criminal records should be subject to a high level of scrutiny by the courts. In that case, the court specified two factors to be used in determining whether a specific group of people should receive civil-rights protections from the court: whether a person suffers due to (1) immutable traits tied to outdated social stereotypes and (2) the stigma of inferiority and second-class citizenship. In California, a felony conviction is essentially "immutable" because, even with the option of a rarely granted pardon from the Governor, the criminal record always remains. Thus, a whole class of Californians has been "relegated to an inferior legal status without regard to the capabilities or characteristics of its individual members," according to the court.
Aaliyah's Story
I worked for a University Hospital in California for many years. My job provided a decent wage, medical and dental benefits for my family, educational opportunities to support me in my position at the University, and the days and hours allowed me to be at home on the weekends with my children. I worked in the office and had no patient contact. I started out in the personnel department, worked in the position of medical secretary and transferred to the Profession Billing Group, where I coded medical procedures for payment. I had many opportunities to advance my career and did this several times during my employment with the university.
The last transfer I obtained was to the Trauma Department, where statistics of trauma patients were collected and sent to a national trauma registry. A specialized position opened up in the trauma department, [one for which] I had experience and a good track record. I wouldn't apply because at this time the hospital started doing criminal background checks for everyone; no matter how long you worked for the university and whether or not you were a problem employee. I didn't apply for the new position for fear of being terminated. I knew I couldn't progress or move to another position without the background check so that meant I couldn't advance to a more meaningful position. After about a year of the position being posted, I left the university.
When the formerly incarcerated see the question "have you been arrested for a felony" on applications for employment, public services, colleges and even insurance policies, instead of wasting their time, many will just not complete the application. If the person is fortunate enough to be granted employment before the background check is completed, that person will be terminated once it is completed. The fear and reality of discrimination stops us from moving on in a positive way with our lives, and causes us to remain on the fringes of society.
