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Azuwuike Okorafor *


Adam and Bob walked into a well-known department store and applied for the same sales clerk position. They both had sales experience and excellent references. After their applications were reviewed, only Bob received an interview. The determining factor in Adam not being called back for an interview was one question on the application form – have you ever been convicted of a felony? Adam served several years in prison for car theft and other violations. Even though Adam had been out of prison for 10 years and was rehabilitated, by disclosing his felony conviction, he gave potential employers an excuse to ignore him for employment. Currently, ex-offenders are not treated as a suspect class. 1 Members of a suspect class receive strict scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or government action. 2 Even though people with criminal records are currently subject to regular employment discrimination, only a few states have passed “ban the box” laws including Connecticut, Hawaii, Massachusetts, Minnesota, and New Mexico. 3 To ban the box is to prevent employers from asking about an applicant's criminal history on an employment form; the employer can however ask about past criminal history during the interview stage. Although, even in places where ban the box laws are

* J.D. 2012, Texas Southern University, Thurgood Marshall School of Law; B.A. 2009, Texas Tech University, Political Science and Education. I would like to thank God and my family, especially my mom, who is my biggest supporter. Without her support there is no way that I could have made it this far. I would also like to thank my amazing girlfriend, Crystal Graham, for being a great listener. Last but not least, I would like to thank everyone at TMSL: protect it, improve it, and pass it on. 1 Ben Geiger, The Case for Treating Ex-Offenders As A Suspect Class, 94 CAL. L. Rev. 1191 (2006). 2 See InherMauldin v. Tex. St. Bd. of Plumbing Exam'rs, 94 S.W.3d 867, 871 (Tex. App. – Austin 2002, no pet.). 3 New State Initiatives Adopt Model Hiring Policies, /SCLP/ModelStateHiringInitiatives.pdf?nocdn=1 (last visited Dec. 21, 2011).


in effect, the provisions often do not extend to private employers. 4 A question many people ask is whether ban the box laws are effective. Others argue that ex-offenders are simply getting what they deserve. To begin to answer these questions, it is imperative to first look at the staggering numbers and facts as they relate to the current conditions facing many ex-offenders today.


There has been over a fivefold increase in the number of incarcerated individuals over the last thirty years. 5 This is the result of an increased emphasis on incarceration and punishment. 6 It is important to note that serving time is not a necessary element needed to place an individual into the ex-offender classification. 7 A simple conviction of a criminal offense with no jail time can still have a lifetime effect on one’s socioeconomic advancement. 8 Currently, in the United States, over 65 million people have some sort of criminal record that would appear in an employment background check. 9 This number is staggering when you realize that it equates to over 20% 10 of the American population having a criminal history. This figure becomes even more disturbing as the number of Americans with a criminal record jumps to almost 32% when looking solely at persons

4 Id. 5 Theodore Caplow & Jonathan Simon, Understanding Prison Policy and Population Trends, in 26 CRIME AND JUSTICE: A REVIEW OF RESEARCH 63, 64-65 (Michael Tonry & Joan Petersilia eds., 1999). 6 Craig Haney & Philip Zimbardo, The Past and Future of U.S. Prison Policy:

Twenty-five Years after the Stanford Prison Experiment, 53 AM. PSYCHOLOGIST 709, 712-18 (1998). 7 See generally Kristen A. Williams, Employing Ex-Offenders: Shifting the Evaluation of Workplace Risks and Opportunities from Employers to Corrections, 55 UCLA L. REV. 521, 526-27 (2007) (stating that once a person is arrested, he or she has a criminal history regardless of jail time; a person may also be placed on probation without jail time). 8 Id. at 522 (noting that a criminal history can leave skilled people homeless). 9 Michelle Natividad Rodriquez & Maurice Emsellem, The Case for Reforming Criminal Background Checks for Employment, /SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1 (last visited July 20,


10 See 2010 Census Interactive Population Map, (last visited July 20, 2011) (total population as of 2010 was 308,745,538).


of traditional working age, those aged 16 to 64. 11 These numbers are astounding considering that every year, 600,000 people 12 are released from some form of incarceration, further swelling the number of ex- offenders needing to assimilate back into society.

A. Before Incarceration

A look into the pre-incarceration lives of ex-offenders shows that there are many similar trends in this growing group. 13 A 1997 study showed that one-third of ex-offenders, both on the state and federal level, were unemployed a month before their arrest. 14 Other studies have shown that 8-16% of the prison population has at least one serious mental disorder and is in need of psychiatric services, 15 and that about 80% of the prison population has reported a history of substance abuse problems. 16 Another factor that seems to correlate with ex-offenders is their lack of education. 17 Nearly 40% of ex-offenders have neither a high school diploma nor a general educational development degree (“GED”). 18 This fact is not lost on the prison systems that house the nation's inmates, as many have instituted some form of vocational training and GED classes in their facilities. 19 The two states with the nation's largest prison systems, California and Texas, 20 are prime examples of the uphill battle inmates face even when offered

11 See Resident Population Projections by Sex and Age: 2010 to 2050, (last visited July 20, 2011) (population projections for 16 to 64 year olds stood at 235,410,000). 12 Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1501 (2003).


REENTRY 3-5 (Oxford University Press, Inc. 2003).

14 Id. 15 Jeremy Travis et al., From Prison to Home: The Dimensions and Consequences of Prisoner Reentry, 17, (last visited June 21, 2011). 16 Id. at 25. 17 Id.

18 Id. 19 Michelle Tolbert, State Correctional Education Programs: State Policy Update, (last visited March 11, 2012).

20 The

656?OpenDocument (last visited July 20, 2011).







educational resources. In California, for the twelve-month period ending in October 2010, only an average of 20% of the inmates successfully completed the Department of Corrections and Rehabilitations Adult Academic Education Program. 21 These statistics do not improve for Texas, which is home to the second largest prison population. 22 During the 2010 academic year, only 17.4% of offenders attained a GED at the Windham School District, which serves all of the inmate facilities managed by the Texas

Department of Criminal Justice system. 23 These invaluable prison vocational training programs that might give inmates a decent chance

at securing lawful employment upon release have been cut back

severely as more and more correctional resources have been diverted

to expansion and construction of new jails and prisons. 24

B. After Incarceration

Although all ex-offenders do not serve time, those who do exit correctional facilities with additional burdens. 25 The conditions of

incarceration include inmate violence, sexual predation, correctional discipline and abuse, and extended solitude, leaving inmates mentally damaged upon their release. 26 Diseases such as HIV/AIDS, hepatitis

C and tuberculosis also thrive in correctional facilities, infecting

inmates at rates far higher than the general population, thus further limiting their ability to transition into society upon release. 27 Upon release from institutions, inmates on parole are also harmed by being

21 Adult Programs Key Performance Indicators,

%20Academic%20Education%20Completion%20-%20Oct%202010.pdf (last

visited July 20, 2011).

22 Jennifer S. Bales, Equal Protection and the Use of Protest Letters in Parole Proceedings: A Particular Dilemma for Battered Women Inmates, 27 SETON HALL L. REV. 33, 50 (1996).

23 Windham (last visited July 20, 2011).


Reentry, 45 B.C. L. REV. 255, 256-57 (2004).

25 Craig Haney, Mental Health Issues in Long-Term Solitary and "Supermax" Confinement, 49 CRIME & DELINQ. 124, 127 (2003). 26 Id.

24 Anthony












27 See Petersilia, supra note 13, at 4 (reporting that the rate of AIDS cases among

inmates was five times higher than the rate found in the general population).


assigned to impoverished communities offering them little opportunity for gainful employment. 28 Having a criminal record does not affect all Americans equally. 29 Nationally, one of three African American males and one of six Latino males can expect to be incarcerated in a state or federal prison during their lifetime, as compared to one out of seventeen White males. 30 Research has shown that the problem is far greater in cities like the District of Columbia where 75% of African American men will be incarcerated at some point in their lives. 31 Since racial minorities are already disproportionately underprivileged, the addition of yet another substantial burden only intensifies the harsh odds minority ex-offenders face in making a legal living. 32 The marginalization of ex-offenders that begins in the criminal justice system is amplified at many other points, including in political rhetoric. 33 Members of Congress, for example, have identified drug offenders as “in-human” or "non-citizens" who have lost all legal protections and civil rights guaranteed to others. 34 One Senator referred to all drug offenders as enemies and a "scourge" on society. 35 Some members of Congress have referred to low-level drug couriers as "animals" and other dealers as "bums," "thugs," "sleazy drug lords," or "merchants of death." 36 These extreme categorizations help to frame the uphill battle ex-offenders face not only against society but also against policy makers in government. 37

28 Travis, supra note 15, at 5-8.

29 U.S. Dep't of Justice, Prevalence of Imprisonment in the U.S. Population, 1974- 2001, (last visited July 20,2011).

30 Id. (noting that this statistic does not include incarceration in municipal or county jails).

31 Donald Braham, Families and Incarceration, in INVISIBLE PUNISHMENT: THE


Meda Chesney-Lind eds., U. Mich. Press 2007).

32 See Margaret E. Finzen, Systems of Oppression: The Collateral Consequences of Conviction and their Effects on the Black Communities, 12 GEO. J. ON POVERTY L. & POL'Y 299, 307 (2005).

33 Margaret P. Spencer, Sentencing Drug Offenders: The Incarceration Addiction, 40 VILL. L. REV. 335, 346 (1995).

34 Id.

35 Id.

36 Id.

37 See Finzen, supra note 32, at 302-03.



In September 1999, 40-year-old Johnny Magee, who is developmentally disabled, picked up a package for his uncle that, unknown to him, contained drugs. Johnny was arrested and convicted of misdemeanor conspiracy to commit a drug offense. He had never used drugs and has never been convicted of any other offense. Johnny held a landscaping job at the Lawrence Livermore National Laboratory for six years until budget cuts forced him to look for a new job in 2008. He applied to Lowe’s Home Improvement store in Dublin, California, for a garden center attendant position. Despite his related prior work experience, Lowe’s refused to hire Johnny because of his conviction. “Lowe’s policy is unfair to me and lots of other good people,” said Johnny. “It’s unfair because they only see something that happened to me many years ago, even though I’ve never been in trouble since. 38

When ex-offenders are denied employment as a result of past crimes for which they were already punished, it results in them paying a double debt to society. 39 Since ex-offenders have not been deemed a suspect class by the courts, such blatant discrimination is often overlooked and often indirectly encouraged by various policies and laws. 40 Organizations, such as the American Bar Association, have determined that "the collateral consequences triggered by a conviction record make it very difficult for offenders to get a job or housing and, generally, to put their lives back on track after their

38 Diane Diamond, Paying the Price Twice, price-twice/ (last visited Feb. 4, 2012). 39 Id. 40 See Miriam J. Aukerman, The Somewhat Suspect Class: Towards A Constitutional Framework for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J. L. SOCIETY 18, 19 (2005).


court-imposed sentence has been served. 41 Sometimes the collateral consequences of conviction are far more severe that the direct ones." 42

A. The Doctrine of Negligent Hiring

In states like California, where 10% of the ex-offender population is homeless 43 and between 70% to 90% are unemployed, 44 it comes as no surprise that the recidivism rate across the nation is at an all time high. With numbers this high, one would expect the government to implement laws that improve ex-offender rehabilitation. 45 However, this is not the case and most current laws do not afford ex-offenders any extra protection from discriminatory employment disqualifications. 46 Instead of helping ex-offenders, state and federal government policies often create harsh barriers for ex-offenders to overcome. 47 Courts have also been instrumental in upholding tort liability for companies hiring ex-offenders under the negligent hiring doctrine. 48 Courts have helped to create the negligent hiring doctrine, which encourages companies to continue the cycle that Johnny Magee and countless ex-offenders have experienced. In Texas, the "basis of responsibility under the negligent hiring doctrine is the master's own negligence in hiring or retaining in his employ an incompetent servant whom the master knows, or by the exercise of reasonable care should have known, was incompetent or unfit” and thereby creating an unreasonable risk of harm to others. 49 Texas courts have long recognized the master's duty to make inquiry as to the competence and qualifications of those he considers for

41 A.B.A Comm'n on Effective Criminal Sanctions, Second Chances in the Criminal Justice System: Alternatives to Incarceration and Reentry Strategies 7 (American Bar Association 2007).

42 Id.


ECONOMIC, AND SOCIAL CONSEQUENCES 5 (Oxford University Press 2003).

44 Travis, supra note 15, at 12. 45 See generally Petersilia, supra note 43 at 6 (noting that more techniques are needed to improve the ex-offender's reentry into society).

46 Schanuel v. Anderson, 546 F. Supp. 519 (S.D. Ill. 1982), aff'd, 708 F.2d 316 (7th Cir. 1983).

47 See id.

48 See generally Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 914-15 (Minn.


49 Robertson v. Church of God, Int'l, 978 S.W.2d 120, 124 (Tex. App. 1997).


employment, 50 especially where engaged in an occupation that could be hazardous to life and limb and that requires skilled or experienced servants. 51 This is a duty owed by the master to his other servants and to the public. 52 Even though the doctrine of negligent hiring is designed to protect society from preventable harm, the implementation of the doctrine has created additional unforeseen consequences. 53 By upholding the negligent hiring doctrine, courts have undoubtedly left employers uneasy 54 because negligent hiring verdicts can cut into a company's bottom line. 55 During the early 1990s, the average out-of-court settlement for negligent hiring was $500,000, and the average jury verdict was $3 million. 56 Courts have held that searching an employee's criminal background is sufficient to avoid negligent hiring liability; therefore, employers can generally protect themselves from liability by thoroughly evaluating prospective employees. 57 El v. Southeastern Pennsylvania Transportation Authority 58 (“SEPTA”) is demonstrative of how an employer can use a prospective employee's criminal record to deny them employment, and thus avoid liability under the negligent hiring doctrine. In SEPTA, King Paratransit Services Inc. (“King”) conditionally hired El to drive paratransit buses. 59 The position involved providing door-

50 LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex. App. 1997).

51 Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App. 2008).

52 Arrington's Est. v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App. 1979, writ ref'd n.r.e.).

53 See generally Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97-98 (Tex.App. – Houston [14th Dist.] 1998, pet. denied) (stating that employer has duty to prevent employee from harming third party).

54 CoTemp, Inc. v. Houston W. Corp., 222 S.W.3d 487, 492 (Tex. App. 2007).

55 See id. at 491.

56 Steve Kaufer, Corporate Liability: Sharing the Blame for Workplace Violence,

bility%20Sharing%20the%20Blame%20for%20workplace%20violence.pdf (last visited Dec. 19, 2011).

57 See generally Read v. Scott Fetzer Co., 990 S.W.2d 732, 736–37 (Tex.1998) (holding a general contractor liable when in-home salesperson committed sexual assault after salesperson was hired without a reference or criminal history check, which would have revealed prior inappropriate sexual conduct in the workplace and a conviction for indecency with a child).

58 El v. Se. Pa. Transp. Auth., 479 F.3d 232, 235 (3d Cir. 2007).

59 Id.


to-door and curb-to-curb transportation services for people with mental and physical disabilities. 60 King subcontracted with SEPTA to provide paratransit services on SEPTA's behalf. 61 King's subcontract with SEPTA disallowed hiring anyone with, among other things, a violent criminal conviction. 62 Accordingly, among the conditions stipulated in El's offer was successful completion of a criminal background check. 63 Within the first few weeks of El's employment, King discovered that El had a 40-year-old conviction for second-degree murder. 64 Following the terms of King's subcontract with SEPTA, King terminated El's employment. 65 According to King personnel, the murder conviction, El’s only violent offense, was their sole reason for his termination. 66 The crime occurred when El was only 15 years old, and he was 62 at the time he was denied employment. 67 After his employment was terminated, El filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in which he alleged that SEPTA's hiring violated Title VII of the Civil Rights Act of 1964. 68 Even with the support of the EEOC, the court sided with the employer. The court concluded that SEPTA's policy was consistent with business necessity. 69 The court's logic was, "if someone with a violent conviction presents a materially higher risk than someone without one, no matter which other factors an employer considers, then SEPTA is justified in not considering people with those convictions." 70 The court also concluded that the age of conviction, the number of convictions, and/or the remoteness of the conviction might be unreliable or otherwise fail to reduce the risk of hiring an ex-offender to an acceptable level. 71 The SEPTA case illustrates how an employer uses an employee's criminal history to exclude them from employment all in

60 Id.

61 Id.

62 Id.

63 El, 479 F.3d at 235.

64 Id.

65 Id.

66 Id.

67 Id. at 236.

68 El, 479 F.3d at 236.

69 Id. at 245.

70 Id.

71 Id. at 246.


the name of safety. 72 Furthermore, SEPTA demonstrates how courts uphold blatant discrimination against ex-offenders in the name of public safety. 73 With courts upholding such hiring practices, employers have a strong incentive to make inquires into an employee's criminal background to prevent later tort liability under the negligent hiring doctrine. 74

B. The Use of Criminal Background Checks

For many companies, criminal background checks are a means to determine the safety and security risk a prospective or current employee poses on the job. 75 The increased use of criminal background checks bars many people who pose little to no risk to the company or to public safety. 76 In fact, many people who have a criminal record appearing on a background check have never even been convicted of a crime (i.e., one-third of felony arrests never lead to a conviction). 77 This is a disturbing statistic since a person with even a minor criminal history faces great social and economic disadvantages. 78 One study found that, "close to one in three American teens and young adults get arrested by age 23." 79 This fact has not gone unnoticed as U.S. Secretary of Labor, Hilda L. Solis, has stated, "[s]table employment helps ex-offenders stay out of the legal system. Focusing on that end is the right thing to do for these

72 Id. at 248 (Taking all of the record evidence into account, there is no substantive evidence on which a reasonable juror could find that SEPTA's policy is inconsistent with business necessity. Summary judgment in SEPTA's favor was, therefore, appropriate). 73 Id. 74 See Verinakis, 987 S.W.2d 90 (Under the tort of negligent hiring and supervision, an employer who negligently hires an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee's negligent or intentional act). 75 H.I.R.E. Network, Negligent Hiring Concerns, (last visited Feb. 4, 2012). 76 U.S. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties 2004, (last visited Feb. 4, 2012). 77 Id. 78 See Diamond, supra note 38. 79 Anthony Boadle, One-third of Young U.S. Adults Have Been Arrested, YAHOO! NEWS, 164839070.html (last visited Feb. 4, 2012).


individuals, and it makes sense for local communities and our economy as a whole." 80 Despite the unforeseen consequences of indiscriminately rejecting job applicants based on criminal history, the criminal background business is booming. 81 Using the Internet to their advantage, many employers order criminal background checks for even unskilled positions. 82 Many states allow Internet access to some or all-criminal records. 83 In addition, an entire industry of private companies, such as LexisNexis and Westlaw, contract with local government entities to provide the public with Internet access to criminal records for a small fee. 84 With little meaningful regulation, criminal background checks have been used to the disadvantage of many ex-offenders and innocent persons with simple arrests on their records. 85

C. The Fallacy of Criminal Background Checks

The EEOC, which enforces Title VII of the Civil Rights Act of 1964, has long recognized as a violation of law not only overt, intentional discrimination, but also facially neutral policies and practices that have a disproportionate impact on certain groups. 86 The impact of criminal background checks severely affects the African American population, which accounts for 28.3% of all arrests in the United States, 87 although African Americans represent just 12.9% of the population. 88 In contrast, the ratio of white arrests as compared to

80 Press Release: U.S. Department of Labor Announces Grant Competition, (last visited July


81 Nat'l. Consortium for Justice Info. & Statistics, (last visit Jan. 1, 2012).

82 Daniel J. Solove & Chris Jay Hoofnagle, A Model Regime of Privacy Protection, 2006 U. ILL. L. REV. 357, 375 (2006).

83 The Attorney General's Report On Criminal History Background Checks, (last visited Feb 1, 2012).

84 Id.

85 See generally id. (noting that the large number of commercial sources for background checks creates a hostile pre-employment environment for ex- offenders).

86 Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 811 (Tex. App. 2009). 87 U.S. Dept. of Just., Crime in the United States 2009, (last visited Feb. 4, 2012).

88 See U.S. Census Bureau, Population Division, Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for the United States: April 1, 2000


their share of population is low. 89 Therefore, the screening out of job applicants simply by their criminal records excludes a much larger share of African American candidates, thus creating a disproportionate impact of criminal background checks to the African American community. 90 This is a national issue as criminal background checks increase and less than one third of states allow ex-offenders to clear their criminal histories. 91 Of this group of states, only thirteen allow those who clear their criminal histories to legally deny the existence of any conviction. 92 Another disturbing fact is that about one in every five states does not allow someone who was arrested, but not convicted, to prevent employers or landlords from viewing their arrest. 93 The criminal justice system records and publishes criminal histories for a large number of people found innocent by that same criminal justice system. 94 More surprising, as discussed below, is that nearly 80% of states allow public and private employers to base employment decisions on arrests not leading to a conviction. 95 Another problem with criminal background checks that is often overlooked is its impact on innocent persons. 96 With employers spending $2 billion dollars a year on criminal background checks, companies are in a hurry to provide this information without checking the sensitive, life changing data for errors. 97 Errors in background checks were highlighted in a recent class-action settlement against a major database company, HireRight Solutions Inc., which required the company to pay $28.4 million dollars to settle problems with

to July 1, 2009, asrh/NC-EST2009-srh.html (last visited Feb. 4, 2012) (showing that African Americans account for over 39 million of the U.S. population of 307 million). 89 U.S. Dept. of Just., Crime in the United States 2009, (last visited Feb. 4, 2012).

90 Devah Pager & Bruce Western, Race At Work: Realities of Race and Criminal Record in the NYC Job Market, (last visited Feb. 4, 2012).

91 Mukamal, supra note 12, at 1509-10.

92 Id.

93 Id.

94 See id.

95 Id.

96 Jordan Robertson, When Your Criminal Past Isn't Yours, YAHOO! FINANCE, http://www. http://finance. 182335059.html (last visited Dec. 21, 2011).

97 See id.


incorrect and/or misleading background information. 98 HireRight Solutions Inc. is not alone. In North Carolina, the licenses of CoreLogic, SafeRent, Thomson West, CourtTrax, and five others, were revoked for repeatedly reporting bad information, or failing to download updated criminal background information. 99 This misinformation leads to people being denied jobs even though they are qualified. 100 The problem of criminal background misinformation was experienced by Kathleen Casey of Boston who was mistaken for Kathleen A. Casey, someone 18 years younger, who lived in the same area with an extensive criminal history. 101 This case of mistaken identity led to the innocent Ms. Casey being denied a job and ultimately becoming homeless. 102 Not only are completely innocent persons affected by these mistakes, but ex-offenders are also harmed when government agencies erase a criminal conviction (through either sealing or expunction) and the many commercial databases do not perform the needed updates required to reflect these changes. Thus, without laws at least limiting an employer's right to make adverse employment decisions based on an individual's ex-offender status, the cycle of recidivism will continue. 103


A. Ban the Box Movement

The problems ex-offenders face across the nation has drawn the attention of many concerned citizens, who hope to stop discrimination against ex-offenders. 104 A grass roots campaign, presently gaining support, is the "ban the box" movement. Ban the box refers to the box on job applications that those with any criminal

98 Id.

99 Id.

100 Id.

101 Id.

102 Id. 103 See generally Jennifer Leavitt, Walking A Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281, 1285 (2002) (stating that if income cannot be legitimately and legally obtained, crime may seem like the only option). 104 All of Us or None, (last visited Dec. 21, 2011).


history are required to check. 105 The purpose of ban the box is to eliminate questions about past criminal convictions on public employment applications. 106 While the ban the box movement was initially aimed towards the prevention of questions about criminal history on public sector job applications, some states and local governments are preventing private companies from asking questions about criminal history on job applications as well. 107 States that have implemented some variation of ban the box include Massachusetts, California, Connecticut, New Mexico, Minnesota, Hawaii, Wisconsin, Pennsylvania, and New York. 108 Table 1 below shows how popular ban the box has become. Even local governments (both cities and counties) have joined the movement, thus making it easier for ex-offenders to gain employment in these localities.

Table 1 109

Cities and counties that have "banned the box":

Alameda County, CA Austin, TX Baltimore, MD Berkeley, CA Boston, MA Bridgeport, CT Cambridge, MA Chicago, IL Cincinnati, OH Detroit, MI Hartford, CT Jacksonville, FL Kalamazoo, MI Memphis, TN

Minneapolis, MN Multnomah County, OR New Haven, CT Norwich, CT Oakland, CA Philadelphia, PA Providence, RI San Francisco, CA Seattle, WA St. Paul, MN Travis County, TX Washington, DC Worcester, MA

105 See id. 106 Id. 107 New State Initiatives Adopt Model Hiring Policies, /SCLP/ModelStateHiring Initiatives.pdf?nocdn=1 (last visited Dec. 21, 2011). 108 See id. 109 Major U.S. Cities and Counties Adopt Fair Hiring Policies, 55e3_1bm6briwd.pdf (last visited Dec. 21,



The earliest modern ban the box ordinances were passed in the 1990's. 110 Since then, additional states and local governments have joined the cause and passed ban the box ordinances of their own. 111 In October of 2008, following the lead of Travis County, the City of Austin, Texas approved a ban the box ordinance. 112 Austin recognized that ban the box “is a national movement with the goal of increasing employment opportunities for people with past criminal convictions by removing questions from the employment application regarding past criminal history.” 113 The Austin ordinance removed criminal background questions from city employment applications and made background checks a requirement only for law enforcement jobs, jobs dealing with financial responsibility, and jobs working with children, the disabled or the elderly. 114 The Austin law stipulates that even when a job applicant falls into one of the background check categories, an investigation is not to be done until the applicant has been selected as a top candidate for the position. 115 This provides applicants with a criminal history the opportunity to have their full credentials reviewed before a hiring decision is made. 116 Thus, ban the box laws are a comprehensive way to protect ex-offenders from discrimination at the state and local levels of government. 117

B. Title VII Protections

The federal law most often cited by ex-offenders seeking legal relief from employment discrimination is the Civil Rights Act of 1964 (“Civil Rights Act”); however, the act does not explicitly protect ex-offenders. 118 Title VII of the Civil Rights Act prohibits employers from refusing to hire or discharge an individual, or to

110 HAW. REV. STAT. § 378-2 (West 2012).

Policies, 55e3_1bm6briwd.pdf (last visited Dec. 21,


112 Austin, Texas, Austin City Council, Resolution 20081016-012 (2008), available at us/edims/document.cfm?id=122137.

113 Id.

114 Id.

115 Id.

116 Id.

117 Id. 118 See Miriam J. Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting

People with Criminal Records, 7 J.L. SOC'Y 18, 26 (2005).

111 Major









otherwise discriminate with respect to an individual’s privileges of employment, based on the individual's race, color, religion, sex or national origin. 119 The EEOC has stated, "an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII." 120 Since the Civil Rights Act does not directly prohibit discrimination against ex-offenders, the EEOC established the following guidelines to assess when the use of an individual’s criminal record data has violated the act, including: (1) the nature and gravity of the offense or offenses; (2) the length of time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought. 121 The SEPTA case highlights that even when the employer’s policies violate EEOC guidelines, courts may rule that the policies did not necessarily violate the Civil Rights Act. 122 SEPTA further exemplifies that any protection Title VII may provide to ex-offenders is insufficient to guarantee their rights because ex-offenders are not a protected class. Protection under Title VII is only afforded to ex-offenders who happen to fall into one of the stated protected groups. 123 In addition, EEOC claims under the Civil Rights Act are retrospective responses and can leave the ex-offender unemployed until a decision is made. 124

C. Equal Protection Doctrine

The Equal Protection Clause in the Fourteenth Amendment of the United States Constitution protects individuals from

discriminatory government classification. 125 The clause states, "No

State shall

protection of the laws." 126 To decide when an action is

deny to any person within its jurisdiction


119 The Civil Rights Act of 1964, Pub. L. No. 88-352, § 703, 78 Stat. 241, 255-56 (codified as amended at 42 U.S.C. § 2000e-2 (2006)).

120 The U.S. Equal Employment Opportunity Commission, Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), Feb. 4, 1987.

121 Id.

122 El, 479 F.3d at 248-49.

123 42 U.S.C. § 2000e-2(a)(1) (2006) (noting that protected classes include race, color, sex, religion, and national origin).

124 42 U.S.C. § 2000e-5(g) (2006).

125 U.S. Const. amend. XIV, § 1.

126 Id.


discriminatory, the Supreme Court developed an interpretive analysis as to the nature of the governmental action and its intrusion on a fundamental right. 127 The Court uses such analysis to determine the level of scrutiny that it will apply in evaluating the challenged government action. 128 In determining the level of scrutiny to apply to a particular government classification, the Court looks at whether the classified group possesses the traditional characteristics of a suspect class, including immutability, political powerlessness, and a history of class-based discrimination. 129 When legislation classifies persons

according to membership in a group with these characteristics, the Court must review the legislation with heightened scrutiny. 130 When

a law distinguishes by race, national origin, or alienage, the Court

must review it with strict scrutiny. 131 In order to pass the strict scrutiny test, the law must further a compelling government interest and be closely tailored to achieve such compelling government interest. 132 When laws distinguish by economic and social characteristics, the Court only scrutinizes as to whether the law rationally relates to a conceivable legitimate government interest. 133 Under this test, any conceivable rational basis to justify the legislation will uphold the law. 134 Legislation is rarely overturned when the Court applies the rational basis test. In comparison, few laws stand

up to strict scrutiny. Courts have decided that public employment is not considered

a fundamental right 135 and that ex-offenders do not constitute a

suspect class; 136 therefore, courts scrutinize legislation affecting ex-

offenders under the rational basis standard of review. 137 In Schanuel v. Anderson, 138 the federal court for the Southern District of Illinois

127 See generally Shapiro v. Thompson, 394 U.S. 618, 631-33 (1969) (discussing the striking of a state welfare law with a one year residency requirement for infringing on the right to travel in violation of the Equal Protection Clause).











United States v. Carolene Products Co., 304 U.S. 144, 152-53 (1938).

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312-14 (1976).

Id. at 312-13.

City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).



Mass. Bd. of Ret., 427 U.S. at 313.

Miller v. Carter, 547 F.2d 1314, 1321 (1977).

Kindem v. City of Alameda, 502 F. Supp. 1108, 1111 (N.D. Cal. 1980).

Schanuel v. Anderson, 546 F. Supp 519 (S.D. Ill. 1982).


held that an Illinois statute prohibiting employment of convicted felons for ten years following their conviction was rationally related to a legitimate government interest. 139 The court stated that,

[T]he plaintiff was not denied procedural due process because he did not have a viable liberty or property right that was infringed[;] [t]he plaintiff was not denied equal protection because it was rational for the state to presume that ex-felons have a greater potential to abuse the rights and privileges associated with a job with a detective agency[;] [and t]he challenged statute satisfie[d] the Equal Protection Clause because it treat[ed] the class of ex-offenders equally. 140

Essentially, as long as a law discriminates against all ex-offenders equally, the law will be upheld because ex-offenders are not a protected class. Ex-offenders have not been successful in persuading the courts that employment is a fundamental right, 141 nor have they been able to convince the courts to treat ex-offenders as a suspect class in order to trigger strict scrutiny analysis. 142 In Does v. Munoz, the court admitted that, "identifying a new fundamental right subject to the

protections of substantive due process is often an ‘uphill battle,’ 143 as the list of fundamental rights ‘is short.’" 144 In deciding against the plaintiff in Does, the court reasoned that, "plaintiffs have not asserted

a fundamental right

and are not members of a suspect class." 145

Ultimately, the Equal Protection Doctrine is not sufficient protection

139 Id. at 524, 526.

140 Id. at 526.

141 Id. at 523-24.

142 Does v. Munoz, 507 F.3d 961, 966 (6th Cir. 2007) (relying on Miller v. Carter,

547 F.2d 1314, 1316 (7th Cir.1977) (holding that ‘‘[s]uch distinctions among those

members of the class of ex-offenders are irrational’’); Nixon v. Commw., 576 Pa.

385, 839 A.2d 277, 289 (2003); Mixon v. Commw., 759 A.2d 442, 451 (Pa. Commw. 2000)).

143 See 507 F.3d at 964 (quoting Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381,

393 (6th Cir. 2005)).

144 See id. (quoting Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000)).

145 See id. at 966 (quoting Cutshall v. Sundquist, 193 F.3d 466, 482 (6th Cir. 1999)).


against discrimination for ex-offenders because even if they were granted a protected classification, the fourteenth amendment would prohibit state action, while offering no protection against private sector actions, such as private employer discrimination. 146 Consequently, it is clear that additional measures are needed to prevent discrimination and to help ex-offenders reenter the job force.


Even with movements like "ban the box" being implemented by state and local governments, there are still loopholes in these laws, which some employers use to discriminate against those with a criminal history. 147 In order to overcome the stigma associated with hiring ex-offenders, national or state driven incentives need to be implemented to promote the hiring of ex-offenders in both the public and private sectors. 148 Currently, forty states across the country require parolees to acquire "gainful employment" as part of the terms of their release. 149 If requirements like this are to be met, the government needs to step in to increase the likelihood that an ex- offender will find a job. 150 Various groups have already begun efforts to propose changes that the government might take to alleviate barriers to ex-offender job reentry. 151 In 2007, the American Bar Association Commission on Effective Criminal Sanctions (“Commission”) developed a series of policy recommendations to "provide the basis for a broad reform agenda to reduce reliance on

146 See Elena Saxonhouse, Unequal Protection: Comparing Former Felons' Challenges to Disenfranchisement and Employment Discrimination, 56 STAN. L. REV. 1597, 1614 (2004) (noting that many laws excluding the entire class of ex- felons from public employment or regulated occupations in the private sector remain on the books without challenge or even much comment).

147 See generally Kan. Stat. Ann § 22-4710(f) (stating that many ban the box laws have provisions which allow employers to not hire ex-offenders if they can show safety or trustworthiness concerns based on the conviction).

148 See generally Rodriguez, supra note 9.


PRISONER REENTRY 162 (The Urban Institute Press 2005).

150 President George W. Bush, 2004 State of the Union Address, Jan. 20, 2004, available at http://www.american 151 A.B.A Comm'n on Effective Criminal Sanctions, Second Chances in the Criminal Justice System: Alternatives to Incarceration and Reentry Strategies 7 (American Bar Association 2007).


incarceration and remove legal barriers to offender reentry." 152 The Commission suggested policy changes to provide alternatives to incarceration and conviction, improvements in probation and parole supervision, and employment and licensure of persons with a criminal record. 153 The Commission recognized that "the ability to get and maintain employment has been identified as a reliable predictor of a criminal offender's ability to successfully reenter society after a term in prison and remain law-abiding." 154 Those who do not find employment are three times more likely to return to prison than those who do find gainful work. 155 The American Bar Association's Commission ultimately deemed that the best policy to prevent discrimination against ex-offender's in the hiring process is reducing the amount of persons incarcerated for small crimes. 156 Two proposals were made to effectuate this goal, including that: 1) lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses; and 2) alternatives to incarceration should be provided when offenders pose minimal risk to the community and appear likely to benefit from rehabilitation efforts. 157 Until massive changes are made that overhaul the American prison system, trying to provide equal protection to ex-offenders may be an uphill battle. 158 However, steps are being made across the country to implement various methods providing ex-offenders the support needed to succeed. 159

A. Second Chance Act of 2007

This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can’t

152 Id.

153 Id.

154 Id. at 27 (noting that research has also consistently shown that if parolees can find decent jobs as soon as possible after release, they are less likely to return to crime and prison).

155 Id.

156 Id.

157 Id. 158 Upshaw v. McNamara, 435 F.2d 1188, 1190 (1 Cir. 1970) (stating that it is harder to prove discrimination under the rational basis test currently under use by the courts).

159 See Second Chance Act , 42 U.S.C. §§ 17501-17555 (2008).


find work, or a home, or help, they are much more likely to commit more crimes and return

America is the land of the

second chance, and when the gates of the prison open, the path ahead should lead to a better life. 160 President George W. Bush

to prison

In 2007, President Bush signed into law the Second Chance Act of 2007. 161 The purpose of the act was to break the cycle of criminal recidivism, increase public safety, and help states, local units of government, and Indian Tribes, to better address the growing population of criminal offenders who return to their communities and commit new crimes. 162 The bill also strives to provide offenders in prison, jails or juvenile facilities with educational, literacy, vocational, and job placement services to facilitate re-entry into the community. 163 The bill’s solution to the increasing joblessness of ex- offenders is to provide federal grants to government agencies and nonprofit organizations to provide employment assistance, and other services that can reduce recidivism. 164 The passage of the Second Chance Act shows that the federal government is aware of the plight of joblessness among ex-offenders; however, the main focus of the act is to provide ex-offenders indirect help to prepare them for reentry into the work force. 165 The federal government has passed other measures, which provide more direct assistance to ex-offenders to facilitate their employment in the private sector. 166

B. Work Opportunity Tax Credit

The only federal program that works directly with employers to encourage the hiring of ex-offenders is the Work Opportunity Tax

160 President George W. Bush, 2004 State of the Union Address, Jan. 20, 2004, available at http://www.american

161 Id.

162 Id.

163 Id.

164 Id.

165 See generally id. (noting that the Second Chance Act does not provide ex- offenders with a job; however it provides them with the training and support needed to find work).

166 26 U.S.C.A. § 51 (2011).


Credit. 167 The Work Opportunity Tax Credit is a federal tax credit incentive that encourages private sector businesses to hire individuals from nine target groups who face barriers to employment, including:

1) long-term temporary assistance for needy family recipients (“TANF”), 2) other TANF recipients, 3) veterans, 4) eighteen to thirty-nine year old food stamp recipients, 5) eighteen to thirty-nine year old designated community residents, 6) sixteen to seventeen year old summer youths, 7) vocational rehabilitation referrals, 8) ex- felons, and 9) supplemental security income recipients. 168 When hiring ex-offenders, the tax credit available to an employer is as much as $2,400 per new hire. 169 The tax credit helps employers reduce their cost of doing business, while at the same time helping ex- offenders gain job experience and benefits. 170 In addition to the federal tax credit, a few states have joined this program and give additional state based tax benefits to companies hiring ex-offenders. For example, Iowa employers are allowed to deduct up to 65% of the wages paid in the first twelve months of employment, up to a maximum deduction of $20,000, for the hire of an ex-offender. 171 These tax credits help motivate any prudent business owner to take a closer look at any ex-offender which applies for employment. 172 Recent studies suggest that these targeted tax credits for ex-offenders raise their probability of gaining employment, especially when combined with other services for employers and training for the workers. 173 Even though the work opportunity tax credit encourages the employment of ex-offenders, it still does not address the core issue of discrimination against ex-offenders. 174

167 Id. (noting that it provides a tax credit to employers for hiring from a specific group of possible employees).

168 9 ways to Earn Income Tax Credits for Your Company, DEPT OF LABOR, /business/incentives/opptax/PDF/WOTC_Fact_Sheet.pdf (last visited Dec. 24, 2011).

169 Id.

170 Id.

171 Net Income of Corp., Iowa Code § 422.35, 6a (2003).

172 TIMOTHY BARTIK, JOBS FOR THE POOR 16 (Russell Sage Foundation 2001).

173 Id.

174 See generally 26 U.S.C.A. § 51 (2011) (noting that employers could simply not take the tax credit and continue to not hire ex-offenders).


C. Is There a Better Solution?

Before an assessment is made on what would serve as a better model to prevent discrimination against ex-offenders, a general recap of the previously discussed current models should be addressed. First, it must be noted that the majority of states allow employers to make employment decisions based on a prospective employee's arrest, even those that did not lead to convictions; 175 this approach leads to the most discrimination. 176 In states that follow this model, employers are able to make hiring decisions based on crimes of which the offender may have been exonerated. 177 The current popular solution, often called “ban the box”, is an incomplete solution to a very complicated problem. Some "ban the box" laws only apply to public employers. 178 Even "ban the box" laws that apply to private sector jobs do not ban employers from checking the prospective employee's background before an ultimate decision is made. Furthermore, not allowing employers to check the criminal background of an ex-offender leaves the employer open to negligent hiring liability. Therefore, many considerations need to be made when creating a comprehensive plan to benefit both employers and ex-offenders. Of all the states and local governments that have implemented plans to help ex-offenders, the New York legislature has created an interesting dual factor approach (the “New York Plan”). 179 The New York plan has two parts, including 1) the appropriate use of criminal conviction information, and 2) the appropriate use of criminal charges and allegations that never resulted in a conviction. 180 The first part of

175 Jordan Robertson, When Your Criminal Past Isn't Yours, YAHOO! FINANCE, http://www. http://finance. 182335059.html (last visited Dec. 21, 2011) (noting that a woman was charged with fraud but never convicted; the charge was never dropped from her online criminal record).

176 See generally May v. Minyard Food Stores, 211 F.3d 126 (5th Cir. 2000) (stating that employee hid some of his criminal history in order to secure a job, but was fired once his criminal history was revealed by the company's risk management team).

177 See Jordan Robertson, When Your Criminal Past Isn't Yours, YAHOO! FINANCE, http://www. 182335059.html (last visited Dec. 21, 2011).

178 Mukamal, supra note 12, at 1504.

179 See N.Y. Correct. Law §§ 750-54; see also N.Y. Exec. Law § 296(16).

180 Id.


the New York Plan prohibits adverse employment decisions made on the basis of the ex-offender's status if the ex-offender has never been convicted of the crime. 181 A continuation of the first section of the New York plan makes it unlawful for any employer, public or private, to make any employment decision based on a finding of a lack of good moral character based on an individual’s previous criminal conviction. 182 The second part of the New York Plan adds protections for the employer allowing them to discriminate against ex-offenders in certain situations, including 1) where there is a direct relationship between the criminal offense and the specific employment sought, 183 and 2) where granting employment would involve unreasonable risk to property or to public safety. 184 The main benefit of the New York Plan is that it allows for a fact based inquiry that employers must undertake before they make any adverse employment decisions based on an ex-offenders status resulting in a risk benefit analysis to be made for each prospective employee. 185 The checks and balances applied in the New York Plan protect ex- offenders by placing significant limits on employer’s rights to make decisions based on the ex-offenders status, while protecting the employer's right to deny an ex-offender when risks outweigh the benefits. 186 In sum, the New York Plan seems to balance many competing needs. If made a national mandate and coupled with existing federal programs, ex-offenders could finally have a more level playing field in the job market. 187


By arguing that the current provisions used by federal, state, and local governments fall short of preventing discrimination against ex-offenders, this article does not suggest that all government action taken has been ineffective. Rather, it suggests that more should be done to decrease ex-offender recidivism on a national scale. If action

181 N.Y. Exec. Law § 296(16).

182 Id. at § 752.

183 Id. at § 752(1).

184 Id. at § 752(2).

185 See N.Y. Correct. Law §§ 752-753. 186 See Hawkins v. New York City Transit Auth., 26 A.D.3d 169, 170, 808 N.Y.S.2d 673, 674 (N.Y. App. Div. 2006).

187 See generally id. (noting that outcomes like this would allow ex-offenders the protection needed).


is not taken on a larger scale, the nearly 600,000 ex-offenders released from confinement per year, 188 along with countless others who have a simple arrest and no incarceration on their record, will be doomed to repeat their mistakes and further burden society. 189 The EEOC has suggested that employers evaluating ex-offenders consider the nature and gravity of the offense, the time passed since the conviction and or completion of sentence, and the nature of the job held or sought. 190 The Commission on Effective Criminal Sanctions organized by the American Bar Association determined that the best way to prevent discrimination against ex-offenders is to reduce the number of ex-offenders; by "[developing] deferred adjudication, deferred sentencing and diversion options that avoid a permanent conviction record for offenders who are deemed appropriate for community supervision." 191 However, unless Congress and/or the courts implement these recommendations and provide ex-offenders with extra protections against employment discrimination, it may be difficult for ex-offenders to become productive members of society. 192 With the varying protections provided by state and local governments, and with few federal protections currently available, many ex-offenders have little hope of overcoming their criminal past. 193 As the number of groups calling for changes to laws as they relate to ex-offenders rises, the time is near to create a national solution to this problem. 194 The New York Plan, with its checks and balances and already existing protections, might be what is needed to

188 Mukamal, supra note 12, at 1502.

189 See President George W. Bush, 2004 State of the Union Address, Jan. 20, 2004, available at http://www.american (stating that those with criminal convictions need the opportunity to lead productive lives).

190 Using Arrest in Hiring, (last visited Feb. 4, 2012).

191 A.B.A Comm'n on Effective Criminal Sanctions, Second Chances in the Criminal Justice System: Alternatives to Incarceration and Reentry Strategies 1 (American Bar Association 2007).

192 See Miriam Aukerman, Criminal Convictions As A Barrier to Employment How Attorneys Can Help People with Records Get A Second Chance, MICH. B.J., Nov. 2008, at 32, 33 (noting that many jobs are off-limits to people with records as a matter of law).

193 See generally id. at 34 (stating that the civil consequences of criminal convictions can be more severe than the criminal consequences).

194 See All of Us or None, (last visited Dec. 21, 2011).


end discrimination against ex-offenders and allow them to reenter the job market. By starting meaningful dialogue on the issue and searching for a solution, ex-offenders will be less likely to return to jail or end up on the streets asking for a dollar.