The United States Equal Employment Opportunity Commission announced this year that it would begin “cracking down” on employers who consider applicants’ criminal backgrounds in hiring decisions (or in firing decisions or discipline).
This is a good thing.
As an Employment and Civil Rights Attorney, I have two very serious concerns over the common practice throughout the United States of considering criminal backgrounds in hiring decisions.
I say this, by the way, not just as a Civil Rights and Employment Lawyer, but also as an employer. I get that if and when this issue personally affects myself or my practice, I will have to make certain that my oath to uphold and defend the Constitution, and my conscience, override any personal, selfish or frightened concerns that may emerge from an applicant’s criminal background.
My first concern is the very nature of what we do with our criminal justice system. Set aside for the moment the idiocy about criminalizing drugs or prostitution. I have neither used drugs nor prostitutes, but these are truly “victimless” crimes. The only “victimization” occurs because they are crimes. This country is not a Christian, Jewish, Muslim or other religious democracy. It is a secular democracy and we ought not be legislating morality. New Jersey is beginning to chip away, slowly, at the idea of legislating morality, by decriminalizing minimum marijuana possession. I will never use the stuff myself, but I certainly don’t want to see prisons filled with people who have done nothing more than use an illicit substance which at best, arguably, harms them individually. A pot user or a person who engages in sexual commerce (between two consenting adults) is no more a criminal then someone who uses alcohol and kills brain cells. If one is illegal then all of it must be illegal. Crimes occur when someone affects the rights of another person against that person’s interests.
I don’t like the idea that so many people become “criminals” for no other reason than that they used drugs or engaged in the sex trade to make ends meet. These are not “bad” people, they are just people, who happen to favor doing something that is fundamentally no different than smoking a cigarette or drinking a bottle of beer. It’s just that, randomly (and because we can’t get our asses straight from our elbows in this country and because continue to insist on legislating morality), those people have chosen the wrong thing to do with their spare time.
These “criminals,” if their records did not contain “criminal” events, would lead much more productive lives as honest, hardworking, sincere folks. Since many people make these types of mistakes when they are young, these records can haunt them for the rest of their lives and essentially ruin not only the lives that they might themselves had lead, but the way in which they could have improved the lives of others as well (families, friends, co-workers, and employees).
Problem one, then therefore, in allowing employers to consider criminal backgrounds, is that most people committed “crimes” which aren’t even crimes.
Secondly, are we punishing people or rehabilitating them? This is the fundamental question that we’ve had to answer in the United States – and in fact, that every civilization has had to answer for itself throughout history. When you “punish” someone for committing a “crime” – however the word “crime” is defined by the local government – you’ve decided that you are not “rehabilitating” the person, but rather punishing them with the idea of deterring them in the future. Sometimes, if the crime is bad enough, and this varies from civilization to civilization, the punishment is rather final (life incarceration, mutilation or death). Most crimes, however, involve some level of “mild” (short term incarceration) to “extreme” (long term incarceration) “deterrence.”
So does it work? Clearly it doesn’t, because most people that get out of jail are to some degree recidivists innately, which means their proclivity is that they are going to commit crimes again. Yet sometimes they do so because jail has done the opposite of rehabilitating them. It’s hardened them, made them more bitter, angry, fearful, or, because of the horrible conditions in prisons, has forced them to commit crimes just to stay alive (such as an assault in order to fight off a rape). People come out of prisons sometimes with worse records than those they went in with, and always emerge from prison with more limited prospects then they had before. Even people who don’t want to be recidivists find that sometimes, they literally have very little choice but to do so in order to live any kind of lifestyle above the poverty line or to avoid public assistance.
There are plenty of people who go into prison and come out ready to commit more crime because that’s how they are and that’s how they will always be. I am not talking about those people.
On the other hand, if we are “rehabilitating” people, then the entire prison system is indictable as ridiculous. We put people in prisons for using drugs (see above), and instead of restricting their movements for the purpose of fundamental re-education, chaperoning, skill development, and counseling, in a nurturing and empowering atmosphere, which admittedly would require a massively greater investment then we already make, we throw these people into pretend “rehabilitation” situations where they once again have to scrape to survive. Are there limited success stories? Of course, yet those are the exceptions and not the rule.
If we decriminalize drugs and other victimless crimes, we would have far fewer people in prisons and far more money to invest in each person in order to make sure that the few people that did go to prison didn’t come out to become drains on society.
I therefore have a major problem with the idea that someone goes through the hell that prison represents and still can’t get a job. This goes doubly so for people who don’t even go to prison and who spend their time on probation or who paid a fine. Either we deem people who have paid their debt to society “clear” on the debt or we don’t. If we don’t, then let’s stop pretending that we do, tell these people that the minute they commit even one crime that they are done for life, and then throw them off the surface of the planet (because telling them that they are not going to be able to get a job is as good as).
Finally, and most insidiously, and most discomfortingly to those who have to discuss it and confront it, there is a race imbalance in the criminal justice system. You can argue all you like but it emerges from a fundamental economic and educational imbalance. That doesn’t matter. At the end of the day the imbalance still exists. Hispanics and Blacks are three and six times more likely, respectively, compared to a Caucasian, to have a criminal record. If you want to argue that’s entirely a matter of choice, you can do that, but it doesn’t matter why this statistic exists; it exists unless we confront it.
My final issue, therefore, is that allowing employers to consider criminal backgrounds is de facto discrimination because the Hispanic and Black minority candidates are three to six times more likely to have such a background to be examined in the first place.
Either we are going to make a better society including everyone and adapt to the future or we are going to close our eyes, stick our fingers in our ears, and pretend that we don’t have problems that we have.
I applaud the EEOC for doing this and it could only happen under an enlightened progressive administration. Elect a conservative president and we are going to start going in reverse once more because the EEOC is part of the Executive Branch and is not answerable either to the Supreme Court or to Congress.
As an Employment Rights Lawyer, I support the EEOC’s initiative. As an employer, I support the EEOC’s initiative. As an American and as a person with a conscience and common sense, I heartily support the EEOC’s decision.
More road repair work on the Journey to Justice.