The Volokh Conspiracy

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Volokh Conspiracy

State prohibition of criminal-record-based-employment-discrimination


Hawaii, New York, and Wisconsin make employment discrimination against ex-offenders (CBED) unlawful, unless an employer can show that successful performance of the job would be jeopardized by a person with a propensity for the kind of crime for which the job seeker had previously been convicted.

New York law states:

No application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character," when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses unless:

1) There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

2) the issuance or continuation of the license or the granting or continuance of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

The New York statute and similar anti-CBED laws and proposals are simplistic. It is a mistake to assume that an employer always or usually hires someone only to fill a narrowly prescribed job. Employers routinely want to hire individuals who can fill various positions as needed and who have a chance of advancing through the firm. In addition, an employer wants employees who are honest, rule-compliant, reliable, and self-disciplined, employees who come to work every day and on time, get along well with fellow employees and clients, and contribute to a harmonious working environment.

The New York statute says that an employer cannot base a conclusion that a job applicant lacks good moral character on the basis of previous criminal convictions. Is it wrong to make a moral judgment about a person who tortured animals or brutalized a child or old man? In reality, we regularly reach conclusions about the character of those with whom we interact on incidents and evidence far less reliable than a criminal conviction. Is it okay for an employer to find that a job applicant lacks good moral character based upon a negative or lukewarm reference from a prior employer? A disturbing job interview?

The New York statute assumes that offenders are criminal specialists who present specific types of risk, i.e. a sex offense conviction indicates only a sexual threat and drunk driving convictions indicate only a vehicular threat? Research shows that many criminal offenders are generalists and opportunists. Today's burglar was yesterday's drug dealer. The person who today was charged with assaulting his girlfriend yesterday used a stolen credit card.

The New York statute imagines an offender with a single aberrant conviction. Of course, there are individuals who meet that profile, but there are also many offenders with multiple convictions, not to mention multiple, arrests, charges and pre-trial diversions. The statute also ignores context. Should an employer be forbidden to consider the fact that the previous (single) conviction arose out of gang or organized crime activity?

Ironically, perhaps, white collar offenders are most likely to have only a single conviction, but their criminal schemes are often complex and have extended over months or years. Can we draw no negative conclusion about Bernard Madoff's moral character based on his decades-long Ponzi scheme? What about the moral character of a doctor convicted of long-term Medicare or insurance fraud? A lawyer convicted of embezzling a client's money, but just once?

Focusing on the fit between the conviction offense and a job's requirements ignores plea bargaining. The conviction offense often does not accurately reflect the defendant's underlying criminal conduct. Perhaps a person with an assault conviction was originally charged with attempted rape. Perhaps a defendant who pled guilty to drug possession was originally charged with drug sale and possession of a weapon. Perhaps a convicted burglar was originally charged with a string of burglaries and settled the cases with a plea to a single count.

New York's effort to regulate the way that private employers can consider criminal record information in their hiring decisions should not be emulated in other states. As I will argue tomorrow, it would be far better for government to clean its own house, reform its own hiring and licensing laws and thereby lead by example. As this now stand, federal, state, county and local governments have all sorts of law disqualifying ex-offenders from various professions, occupations and employments. If the government is successful in selecting certain ex-offenders for certain positions it will encourage private employers to follow suit.