Fair Chance Recap

Since the Fair Chance Hiring Ordinance passed in Austin a couple weeks ago, there’s been a fair amount of conversation, both locally and nationally, on “ban the box” and other policies intended to help remove barriers for people re-entering communities after serving time in jail or prison. Last week, the Obama administration announced that blanket policies against renting to people with criminal records violate the Fair Housing Act; the New York Times Editorial Board published an editorial in support of Obama administration policies aimed at lifting burdens to re-entry and ran a “Room for Debate” section on ban the box policies; and Smart on Crime ran an article purporting to tell the “truth about ‘ban the box.’” Locally, there’s been some back-and-forth on the new Austin law, with Derek Cohen at TPPF writing an Op-Ed decrying the recent measure, and a response by two Second Chance Democrats, Jacqueline Conn and Brian McGiverin, countering Derek’s piece.

Briefly, the arguments on either side of “ban the box”:

For:

• Helps restore civil rights to people who have been incarcerated and puts them and their loved ones on the road to economic stability.
• Lowers recidivism; employment is one of the strongest predictors of desistance from crime.
• Increases applicant pools for businesses.
• Expands tax base for communities and governments. 

Against:

• Restricts businesses’ freedom.
• Opens businesses up to litigation if they rescind an offer after doing a background check.
• Imposes high costs on employers.
• Without criminal history information, employers will assume criminal histories for black and brown people and discriminate even more than they already do.

I (Amanda writing here) fall solidly on the side of supporting these measures.  After reading the coverage over the past couple of weeks, I decided to take a closer look at the arguments we've been hearing in opposition. 

The argument that the policy restricts businesses’ hiring choices is a recycled argument from the civil rights era, and is heard frequently in opposition to antidiscrimination laws. Antidiscrimination policies affirm the rights of marginalized populations over businesses' right to discriminate  – that’s the whole point. For more on that, see Brian McGiverin’s testimony at Austin City Hall.

The argument that the policy will open businesses up to litigation is also not unique to ban the box. Any regulation has that potential. In the case of ban the box, as long as businesses follow the law and EEOC guidelines, they will prevail in lawsuits. Unfortunately, no policy fully protects people or businesses from frivolous lawsuits.

On the costs to businesses, Cohen pointed to what he says will now be the prohibitive costs of employers’ flying applicants to Austin for later stage interviews, only to learn later of an applicable conviction that renders the person unfit for the job. The fact that a person may be eliminated from consideration after an in-person interview is not a cost-prohibitive outcome of the fair-chance hiring ordinance; it’s part of the hiring process. In my experience, employers who fly in candidates for interviews are doing so to further whittle down the applicant pool. There are various reasons people who are brought in to interview may not end up with the job (personality/culture conflict; a candidate withdraws from consideration; final salary negotiations fall through), one of which is now a related conviction. Further, the Austin ordinance only applies to companies with more than 15 people, in order to protect small businesses with fewer resources.

The argument that ban the box will exacerbate the disparities it intends to fix is sometimes based on Professor Stoll’s research finding that employers who run criminal background checks are more likely to hire “minority male applicants” than those who don’t. But ban the box does not prohibit employers from running background checks; it only requires the checks be run at a certain point in the hiring process. Without ban the box, a background check is only run for people whose applications don’t get trashed right away, so employers who run background checks on people who have checked the box on an application are already a self-selecting group. And the alleged problem of racism whack-a-mole (that disparities will pop up in one place or another) should cause us to look more critically at racist institutions and hiring practices, not give up on antidiscrimination policies.

I would be remiss not to point out who is making the arguments on either side. Those against are mostly white men who themselves have not been directly affected by mass incarceration. Those in favor are people with conviction histories, their families, and their communities – the people who have been affected by mass incarceration and the discriminatory hiring practices that follow.

As I recently heard a formerly incarcerated person who is now a national advocate say, those closest to the problem are the ones closest to the solution. After years of failed top-down criminal justice policies, maybe it’s time we flip the switch on who gets a seat at the table and a say in constructing policy. The Fair Chance Hiring Ordinance in Austin was a solution that came from the very people who have been affected by incarceration and the subsequent barriers to re-entry. I think we should listen to them on this.

Update: Representative Paul Workman entered the fray with an Op-Ed published this morning.