Civil Disabilities in an Era of Diminishing Privacy: A Disability Approach for the Use of Criminal Records in Hiring

Abstract

Mass incarceration policies and the mass proliferation of criminal records and their ubiquitous use in hiring have severely limited the lifetime employment opportunities of the 70 million Americans with criminal convictions. Overbroad hiring screens drive recidivism by limiting opportunities to employment that would promote successful reentry into the workforce. Hiring practices that screen out those with criminal records also magnify the already potent employment discrimination experienced by African-Americans, who disproportionately have criminal records.

Recent strides to grapple with this problem, state and local “Ban the Box” laws and the 2012 guidance by the Equal Employment Opportunity Commission (EEOC) to employers clarifying the types of hiring screens that violate Title VII of the Civil Rights Act of 1964 have deterred hiring screens that categorically exclude people with criminal convictions. But these reform strategies have had limited success in the unfinished business of facilitating the large-scale reentry of people with criminal convictions into the workforce. To accomplish this, reentry proponents must look beyond overbroad initial hiring screens and identify approaches that encourage employers to disregard criminal convictions unless they indicate an unreasonable risk to the workplace.

This Article suggests that the legal norms for integrating people with disabilities into the workforce should serve as a model for how to better reintegrate people with criminal records into the formal labor market. Disability laws achieve integration with use of privacy measures to shield highly stigmatizing medical information that is likely to be misinterpreted or misused, and equal opportunity protections to reduce the stigma of a disability while encouraging contextualized assessments of any accommodations that a disability may require. These measures are equally applicable to the protection of individuals with criminal records and other civil markers of inferiority, such as poor credit histories.

Specifically, a disability approach applied to criminal records would: (1) Restrict employer access to long-ago and minor convictions that do not predict future behavior by sealing or expunging these records, or otherwise prohibiting their disclosure for employment purposes; (2) Where criminal records may predict future behavior, permit their disclosure to employers after the applicants have been found qualified for the position and provided a conditional offer of employment; on condition that (3) Employers only reject these conditional employees based on an individualized assessment that their criminal record history presents a genuine risk to the workplace that cannot be reasonably accommodated.

The approach recommended here is not in tension with studies showing that employers who conduct background checks are more likely to hire African-Americans because it would permit employers to evaluate relevant conviction histories before deciding whether to hire. Restrictions on the review of sensitive data have succeeded in other contexts and employers may welcome such restrictions here, because shielding irrelevant criminal convictions from employer access would limit employers’ negligent hiring liability.

Keywords: Anti-Discrimination Law, Privacy Law, Title VII, Ban the Box, Fair Credit Reporting Act, Reentry, Disability Law

JEL Classification: J15, J71