The Washington PostDemocracy Dies in Darkness

Millions of ex-cons still can’t get jobs. Here’s how the White House could help fix that.

There are a lot of good rules on the books already -- if only they were enforced.

Job applications can screen people out — for the wrong reasons. (Aaron M. Sprecher/Bloomberg)
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Tamisha Walker remembers when she came upon the box.

“Right then and there, it was like the air went out of my tires,” she says. It was the “have you ever been convicted of a crime?” box on a job application for a job at Burlington Coat Factory in a suburb of San Francisco. After six months in prison on an arson charge, the correct answer for Walker was “yes” — but saying so could essentially disqualify her for the job.

“Automatically I’m having to make a moral decision,” Walker says. “Am I gonna lie? Or tell the truth?” Walker came clean. She got an interview — but at the end, she says, the interviewer shook her hand and placed her application in a box on the floor, never to be seen again.

Of course, Walker didn’t know it was because she’d checked the box; ex-offenders don’t get to see the logic behind employer hiring decisions. But she knew it hadn’t helped. “I’m not going to be able to get a job with a felony,” she thought.

Ultimately, Walker did get a job, as a community organizer for a group dedicated to making sure formerly incarcerated people don’t face the same kind of discrimination. Within a couple of years, she’d helped pass a law in the city of Richmond, Calif., banning the city government and its contractors from asking about criminal history on job applications.

A few months later, California passed a measure requiring state agencies to delay asking the question until after they’ve determined that the applicant meets the basic requirements for the job — which tends to give formerly incarcerated applicants a better shot. San Francisco went even further, extending the policy to private employers as well. Meanwhile, the “ban the box” movement was sweeping the country: Since Hawaii became the first jurisdiction to protect the employment prospects of people with criminal records in 1998, 12 more states and 97 cities and counties have passed some version of “fair chance” hiring.

The momentum will likely continue, but “ban the box” advocates aren’t satisfied with local measures. In September, Walker found herself in a meeting at the White House with a delegation of formerly incarcerated people, asking what more the administration could do. Today, several community-based and civil rights organizations are launching a campaign asking President Obama to ban the box nationwide, at least for government jobs — and for those jobs paid for by $540 billion in annual by federal contracts.

“Now is the time for President Obama to act boldly to open up employment opportunities for the large numbers of Americans who have been unfairly locked out of the job market because of a criminal record,” reads a report drafted by the National Employment Law Project, which estimates that 70 million Americans have some type of arrest or conviction record — a population in which people of color are disproportionately represented. (A 2010 analysis found the number of people who had been convicted of felonies was much lower, at between 12 and 14 million people of working age.)

The report proposes that Obama issue an executive order reinforcing existing federal protections for people with criminal records during the hiring process. It’s become a popular strategy with progressive activists, at a time when not much gets through Congress — even though the president’s powers are limited, the ripple effects can be large. After Obama signed an order raising the minimum wage for federal contractors to $10.10 an hour, for example, many states, cities, and companies followed suit. He’s also banned discrimination against gay, lesbian, and transgender job applicants.

That’s what got Dorsey Nunn, a formerly incarcerated activist who’s helped lead ban-the-box campaigns as executive director of an organization called All of Us Or None, interested in appealing to Obama.

“Based on him coming out of Chicago being a community organizer, I figured he’d seen it. It didn’t bother me with the other presidents, it bothers me with this president,” says Nunn.So when I see him rolling out an executive order for gays and lesbians, I’m saying, ‘what about me?’ What he gave to them was something I’ve been fighting for for over 10 years.”

Now, Obama certainly hasn’t ignored the problem of employment discrimination against people with criminal records. He convened a cabinet-level Reentry Council, which is working on the employment problem, and a report by the My Brothers Keeper initiative endorsed banning the box nationwide as well, recognizing that holding a steady job is one of the most important factors in keeping people out of jail. The Office of Personnel Management already avoids consideration of criminal records until a job offer is made, in accordance with guidance from the Equal Employment Opportunity Commission.

But the NELP report identifies ways in which those good intentions break down on the fringes, since the federal contracting system is so sprawling. Millions of jobs every year require FBI background checks, for example, which often rely on faulty data.

“There are big gaps,” says Maurice Emsellem, director of the Access and Opportunity program at NELP. “We’re trying to say that the federal government needs to step up and be a model employer here.”

Of course, there are a lot more jobs that the federal government isn’t responsible for. Even ban-the-box laws usually don’t prevent private employers from finding out about a person’s criminal history themselves — nine out of 10 employers screen applicants with background checks, according to a 2009 survey by the Society for Human Resource Management. Employers like having the freedom to do so, since they might be held liable if an employee with a criminal record does something wrong.

Obama can’t tell private companies what to do through an executive order — that would requirecCongressional action. But leading by example matters, and some major employers have already de-emphasized their consideration of rap sheets: Target, Walmart, and Home Depot now don’t ask about criminal history for most jobs.

Ultimately, Tamisha Walker also knows that banning the box doesn’t solve all problems for former prisoners. They can still be kept out of housing because of their records, and face other kinds of subtle prejudice that make reentry difficult.

“The only way to really stop this is make them a protected class,” she says. Which is a whole other campaign to fight.