Letter to the Editor

This week President Obama announced new actions to alleviate burdens on the formerly incarcerated in their efforts to find jobs. As quoted in the New York Times on Nov. 2, the president aptly frames the issues as stepping “efforts to help Americans who’ve paid their debt to society reintegrate back into their communities.” The president underscores that this effort requires an expansive sense of responsibility: “Everyone has a role to play, from businesses that are hiring ex-offenders to philanthropies that are supporting education and training programs.”

At Amherst College for almost 10 years several professors have been teaching Inside/Out courses that bring Five College and incarcerated students to learn together as equals. This has been an enormously transformational experience for our students, regardless of the topics of their individual courses, to gain understanding about the criminal justice process, prisons, inequality, and racial discrimination. At the deepest level our students learn to appreciate that societal stereotypes about “criminals” create damaging misrepresentations of currently and formerly incarcerated individuals.

In every Inside/Out class I have taught, both groups of students end up focusing much of their attention of the problem of job opportunities for persons exiting prison. Frankly, we grow deeply frustrated by the profound difficulties ex-prisoners face and the many barriers to pursing job opportunities. In order to productively respond to these frustrations, we need to heed President Obama’s call and make efforts for positive change in our own backyard, at Amherst College.

Why is it so important to start addressing it here? It is, in fact, necessary to take affirmative measures to counteract the racially discriminatory impact of background checks and to further the college’s commitment to diversity.

In some situations federal or state laws require criminal background checks. For example, when the employee has direct contact with a vulnerable population (children, the elderly, and the disabled) or high-level security clearances are necessary. In these cases, certain violations expressly disqualify applicants for the job (see Code of Mass Regulations pages 800-899). The voluntary use of criminal background checks, where vulnerable populations and security are not paramount issues, derives from the advice of risk management specialists. Often proffered without supporting evidence about the correlation between prior criminal convictions and workplace safety, such recommendations are based on erroneous assumptions about the causes and likelihood of repeat criminal behavior. The voluntary use of criminal record information in hiring decisions is, at its core, a questionable practice in a society that aspires to promote equality of opportunity. When criminal background information is considered, it imposes additional scrutiny on individuals who have satisfactorily met the conditions of punishment as a result of conviction, and may inhibit their opportunities to pursue employment and to enjoy full rights as citizens.

Moreover, there is strong evidence that the consideration of criminal background information, through a variety of mechanisms, has racially discriminatory consequences.. In all stages of criminal justice enforcement (arrest, prosecution and conviction) there is well-documented bias against racial and ethnic minorities. As a result, it is statistically more likely that these biases are reproduced in the demographic profile of those who carry the burden of criminal records when seeking employment. By some estimates, this includes over 70 million Americans. Moreover, the use of criminal background checks may also serve as a surrogate for more direct racially discriminatory practices. There is reliable empirical evidence, in fact, that shows that when employers are made aware of criminal records they are more likely to discriminate on the basis of race. The combined effect of mass incarceration and the growing use of criminal background checks by employers have further threatened the economic advancement of racial and ethnic minorities.

In response to the institutionalized bias within criminal records, over the last several years, major changes have been implemented at the state and federal levels in an effort to counteract the effects of unfair use of criminal background information. Massachusetts has been a leader in these reforms by adopting a CORI Reform Bill in July 2010 that prohibits employers from requiring criminal record information in the initial stages of the hiring process (commonly called “Ban the Box”). At the federal level, in 2012, the EEOC issued an “Enforcement Guidance” document on the criminal record information by employers. This document warns employers about their potential liability for disparate impact employment discrimination under Title VII and their requirements to apply a “business necessity test” in evaluating criminal record information. There is also an effort underway to pass the Fair Chance Act, to restrict the use of criminal record information in hiring at the federal level.

For several decades, the increasing utilization of criminal records checks has been driven by risk management strategies designed to avoid liability for negligent hiring. Now, we are in the midst of a dramatic shift in social policy that has produced extreme legal uncertainty regarding this issue. Legal counsel for employers, human service professional organizations, the criminal record and credit bureau agencies, for the most part, remain highly resistant to and dismissive of “Ban the Box” reforms. In their publications and advice to employers they caution that these reforms will be broadly interpreted by state and federal civil rights commissions and advocates are likely to draw attention to non-compliant employers. Legal experts, in particular, are now acutely aware that employers must be concerned about their compliance to these new laws and the possibility of Title VII lawsuits. The crucial issue presented by legal experts is: How will employers, who choose to exclude potential employees based upon criminal record information, demonstrate a “tight nexus” between the prior criminal conduct and the requirements of the job position? This issue is precisely what should concern employers, like Amherst College, whose mission is integrally related to the goal of equal opportunity. But it needs to be reframed as an ethical question: What is the fair consideration of criminal background information in decision-making about employment? In an academic institution, we have an obligation to inform our actions with knowledge and avoid categorical exclusions of groups based upon bias and misperceptions. This means that we have a responsibility to question unfounded assumptions about the propensity of persons with criminal records to commit further crimes in the workplace, to recognize the positive value of providing the formerly incarcerated with opportunities for work, and to analyze what can be organizationally and educationally dysfunctional consequences of the expanding role of legal regulation in the workplace.

What can we at the college do to assure there is only appropriate use of background check information and we are doing are best to assure equality of opportunity. The most important consideration, with or without explicit criminal background check policy, is how do we, as an educational institution, mitigate against the socially undesirable effects of criminal record discrimination in our society. Examples of these efforts might include: taking advantage of hiring incentives for the formerly incarcerated, implementing recruitment strategies targeted at persons with criminal records, developing transparent criteria for the consideration of criminal justice information that demonstrates an individualized and compassionate assessment of the potential employee’s circumstances, and promulgating clear guidelines to prevent the mistreatment and harassment of individual based upon knowledge of their criminal records.

Finally, given Amherst College’s serious under-representation of faculty and staff identifying as racial and ethnic minorities and our commitment to diversity, it is all the more important to take these affirmative steps in our hiring practices. This would symbolically send the message that we care about the mounting attention being given to criminal record discrimination as a civil rights concern and its implications for diversifying our community.