Felon Protection

Should employers be forced to hire ex-cons.

Walter Olson from the December 1999 issue

(Page 2 of 2)

So intense was public sentiment over the episodes that a few legislators critical of the law actually managed to bring a bill aimed at revising it to the floor of the state assembly. This was a switch: Similar legislation had been bottled up in committee the previous year, amid vigorous opposition from inner-city Milwaukee legislators. "This is foot-in-the-door legislation that can be used to discriminate against certain people," Rep. G. Spencer Coggs (D-Milwaukee) said this time around.

This turned out to be the one case in a thousand where school safety hysteria worked to assist the forces of rationality. Scalding a child, everyone seemed to agree, was a far more heinous offense on Moore's part than if he'd succeeded in hitting and burning his grown-up girlfriend. And Waste Management did its best to conform to the spirit of the times by stressing in its public statements that the recycling job Turner was seeking would give him access to such contents of recycling bins as "weapons, used hypodermic needles, and BB guns," and that more than a dozen Boy Scout troops and school groups had toured the facility in the previous year. (By contrast, it said little about the views of the employees who might not have wanted to work alongside Turner day in and day out, perhaps recognizing that the law had already written off their interests as of no importance.) In the event, the Assembly voted by an 85-to-14 margin to allow schools--though not other sorts of employers--to take felony convictions into account. It remains to be seen whether even that limited step will clear the rest of the legislative process.

Meanwhile, federal law has progressed a long way toward developing its own version of felon protection. For starters, the Americans with Disabilities Act may require employers to ignore some past violent or criminal behavior when it is blamed on mental illness or behavioral disabilities such as alcoholism. More sweepingly, the federal Equal Employment Opportunity Commission (EEOC) holds that for employers to take workers' criminal records into account subjects racial minorities to "disparate impact" (since they are more likely to have such records) and must therefore be justified by "business necessity." As a result, managers nationwide--not just in states like Wisconsin--have for years been advised that they ask job applicants about conviction records only at their peril, and that they should not ask about arrest records at all.

To be sure, the EEOC's attempts to expand the frontiers of criminal protection have not always succeeded in court. In a 1989 case, it lost after having demanded that a trucking company hire felons to handle "high-risk" freight such as computers and pharmaceuticals. The words of U.S. District Judge Jose Gonzalez, throwing out the agency's contentions, could serve as a dry coda to the whole subject: If applicants "do not wish to be discriminated against because they have been convicted of theft," he wrote, "then they should stop stealing."

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“EEOC Files Suit Over Use of Credit and Criminal Histories in Hiring” links to this page. Here’s an excerpt:

…of Credit and Criminal Histories in Hiring” by Walter Olson on December 8, 2009 A federal agency once famed for its anti-employer zeal is quickly returning to an activist stance. [ Workplace Prof ; my earlier take on the criminal-record issue, in Reason] Related posts Who’s riding that snowplow? (3) October 8 roundup (2) May 14 roundup (2) Lied on job application about having brutally murdered his wife (13)…

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I find it deplorable that Reason chose to publish such a rhetorically charged piece of opinionated drivel as this Walter Olson article. Mr. Olson has, most certainly, never bothered to read any of the literature on the Collateral Consequences of Criminal Conviction (such as the excellent work done by former US Pardon attorney, Margaret Colgate Love) in which statistical evidence is actaully cited in the formation of an INFORMED opinion on such issues, particularly with regard to studies which show increased recidivism rates that directly correlate with the recent drastic increase by the private sector in the use of CBC's, and research into state-by-state laws and hiring practices which, for the most part, do not distinguish between any of the relevant factors in assessing the risk associated with hiring ex-convicts, which is, indeed, indicative of a practice that is discriminatory in nature. Instead, Mr. Olson's idea of responsible journalism consists in the citation of a few extreme examples to paint the entirety of this country's ex-convicts with the same demeaning and discriminatory brush. Indeed, many of his points are contingent upon assumptions in which such considerations as length of time since offense, rehabilitative effort (including subsequent positive school and work histories), and the nature and seriousness of the original offense, are deemed irrelevant to the law under consideration. Such irresponsible scholarship should not only NOT be condoned by Reason, but should expose Mr. Olson to an appropriate level of future negative consequences not unlike the collateral consequences ex-felons must suffer for the remainder of their lives, if only, so he can experience, first-hand, the sort of discriminatory practice in his chosen profession for a short time. Bad journalism should not be printed, particularly bad journalism which masquerades as "insightful commentary". I, for one, will no longer read anything printed in Reason as a result of their irresponsibility in publishing such nonsense. As a philosophy PhD student at a Big East University who is currently working on a somewhat related dissertation project as the baseless article attempted here by Mr. Olson, I could fill hundreds of pages with reputable statistical studies which directly contradict the majority of what Mr. Olson writes in this article; however, as a true professional, I will not entertain such nonsense any longer than the time it takes to post this comment.

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