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."