After disappearing from his website earlier this month, Georgia Governor Nathan Deal’s executive orders are back online. Among the routine list of dozens of appointees to various boards and commissions, many had hoped to see the long-rumored “ban-the-box” order that would help remove employment barriers for convicted criminals who have served their time. Unfortunately for those hoping for the change, it looks like the wait will be a little longer. The good news for them, however, is that a growing movement of both public and private employers across the country is pushing to eliminate a major hurdle for many people trying to re-enter the workforce.
Anyone who’s filled out an employment application has encountered the question “Have you ever been convicted of a felony (or crime)?” Check the ‘NO’ box and the application gets judged on other merits. But check the ‘YES’ box and, in most situations, the further explanation had better be compelling to hold the hiring manager’s attention, that is if they haven’t already decided to pass on the applicant. The ban-the-box movement sees this question as unnecessarily prejudicial, effectively making convicted felons unemployable long after they’ve paid their debts to society.
Back in the spring, Governor Deal said the details were being worked out for an executive order to ban the box from applications for state jobs. This would make the State of Georgia the latest in a substantial list of employers who have broken down the barrier, like Target, Walmart, and Bed Bath & Beyond–as well as more than 60 cities and counties across the nation, including Atlanta and Memphis. Of course, masked in this movement is that, at its core, ban-the-box is as much about fair hiring practices as it is about helping to reduce crime, since Bureau of Justice statistics show two-thirds of released prisoners will be arrested for another crime within three years, and three-quarters will be re-arrested within five years. The ban-the-box notion is straightforward. If former convicts can’t find work, they’ll have little choice but to revert to criminal activity, so let’s give them a chance to go straight.
Although an initial reaction to such a proposal might be concern about hidden criminals suddenly lurking in every employee break room, the majority of the ban-the-box proponents don’t seek to eliminate the question entirely, but instead move it to later in the interview process. Doing so, they argue, allows someone who’s trying to put their life back together to get their foot in the door and not be dismissed before they’ve gotten a chance to make an impression free of the stigma of an ex-con. If the applicant moves far enough along in the hiring process on their own personality and achievements, the employer can then inquire about a criminal past and decide whether it affects their decision.
Many employers are uneasy with the ban-the-box movement and, naturally, it has everything to do with fear of liability. The employers worry that they will be subject to negligent hiring lawsuits if a known criminal commits a violent act in the workplace, or that they will face a discrimination suit for refusing to hire them in the first place. As Susan Gauvey, a federal Magistrate Judge in Maryland, pointed out in writing for human resources professionals, “no research has shown that workplace violence is generally attributable to employee ex-offenders or that hiring ex-offenders is causally linked to increased workplace violence.” Equally important, she noted that a claim for negligent hiring following a violent act by a former criminal would only be successful if the act was in any way foreseeable–a common standard that only requires the employer to show it exercised reasonable care in vetting the employee.
Since ban-the-box legislation will still permit the criminal conviction question for certain sensitive occupations (public safety officers, child care providers, etc.), it would seem unreasonable for an employer to make assumptions and draw conclusions about applicants when there’s no rational connection. For example, a retail store might choose to pass on someone who has had multiple theft convictions, and it’s unlikely that person would have a very strong case of discrimination against other applicants without a history of stealing. On the other hand, a tree-trimming service might not have a valid reason for suddenly retracting a job offer for fear of workplace violence when they learn that an otherwise qualified applicant spent 13 months in prison six years ago because, as a teen, he or she took a joyride in a stolen car.
As it becomes more common, public awareness and positive results from ban-the-box initiatives should play a big role in helping to end employment discrimination for former convicts. But, if it doesn’t, we’re here to help. Mays & Kerr represents plaintiffs in employment matters, including employment discrimination, wage and hour, FMLA, and more. With offices in Atlanta and Nashville, we offer a client-centered philosophy and strive to accomplish our clients’ goals as if they are our own. If you live in Georgia or Tennessee and need an experienced Atlanta employment law attorney, contact us today at 1-877-986-5529.