Teresa Hodge went to federal prison after years as a human resource professional. After serving almost five years in Alderson Federal Prison Camp in West Virginia for a nonviolent, white-collar crime, then being at a halfway house in the District, Hodge was eager to return to pre-prison life.
But with her experience in personnel management, she “was fully aware of how challenging it was going to be to overcome the stigmatization wrought by my conviction when attempting to find work.” Employment is a critical element in the rehabilitation of people with criminal records.
That awareness turned to stark reality as she filled out an online application for a part-time job that paid just above the minimum wage.
“And then the question appeared,” Hodge recalled in congressional testimony, “the dreaded question that those of us with an arrest or conviction fear most: ‘Have you ever been convicted of a crime?’ I took a deep breath, checked ‘YES,’ and hit enter.
“What happened next was devastating,” she continued. “The screen went completely black. Then a message appeared. It said, ‘Something you answered disqualified you for this job.’ Well, I knew it was not my name. I knew it was not my address. The answer was glaring: I was disqualified for a job without even having an opportunity to enter my qualifications. …
“For the millions of people who have satisfied their sentences, that dark screen is a regular occurrence that dims the light on people’s attempts to reenter society, feed their families and clothe their children.”
Hodge represented JustLeadershipUSA at the hearing, an organization dedicated to lowering the incarceration population. Her experience was an example of what the Fair Chance Act hopes to remedy in federal employment with “ban the box” legislation now being considered. It would “prohibit Federal agencies and Federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer, and for other purposes.” Ban-the-box refers to the place on employment applications that asks about criminal records, like the spot where Hodge checked “yes,” making the screen go blank.
Agency and contractor managers could still ask about convictions, but not in the first stages of the application process. The Obama administration instituted similar rules for federal agencies. This bill would codify those regulations and extend them to federal contractors. The legislation has generated strong levels of bipartisan support that would have been unheard of not too many years ago, when many Republicans wouldn’t touch measures like this.
Republican Sen. Ron Johnson (Wis.) is chairman of the Senate Homeland Security and Governmental Affairs Committee, which has approved a companion bill he co-sponsored. “The Fair Chance to Compete for Jobs Act recognizes the crucial role employment plays in transforming lives,” he told a House panel. “Just because some have temporarily lost their freedom because they committed a crime does not mean they have also lost their right to pursue happiness.”
Hodge and Johnson testified last week before a joint hearing of two House Oversight and Reform subcommittees. While some concerns were expressed by Republicans at the hearing, it was clear, as Rep. Mark Meadows (R-N.C.), predicted, “this is going to be passed by both chambers, will be signed into law.”
Meadows’s assessment is important. He is the ranking Republican on the government operations subcommittee, which co-sponsored the hearing, and chairman of the House Freedom Caucus, an influential group of right-wing Republicans. His support was personal and political. As an employer in the private sector, Meadows hired people with criminal records. Doing so was “rewarding,” he said, adding that they were “some of the best employees that I ever had.”
Many jurisdictions across the country follow similar practices.
“Today, 33 states and more than 150 cities and counties have instituted ‘ban the box’ policies,” said Rep. Jamie B. Raskin (D-Md.), chairman of the civil rights and civil liberties subcommittee. “In addition, companies such as Walmart, Koch Industries, Target, Home Depot and Bed Bath & Beyond have embraced the policy, too.”
Concerns raised about the measure were mild, yet some were based on reasoning that shows just how insidious racism can be.
Rep. Chip Roy (R-Tex.) said the bill “may not actually advance the cause” of enhancing employment opportunities for those who have been convicted. He mentioned a study by Jennifer L. Doleac, an associate professor of economics at Texas A&M University. In a 2016 Brookings Institution paper, Doleac argued that because black people are overrepresented in the criminal justice system, banning the box could lead employers to “avoid ex-offenders by avoiding groups that are more likely to contain ex-offenders, like black and Hispanic men.” In other words, black and Hispanic men could be discriminated against generally, no matter their records, so employers could be sure to discriminate against criminals. “White applicants with criminal records benefited the most” from ban-the-box policies, she argued.
While it is true that black and brown people are overrepresented in the criminal justice system, it’s also true that studies have shown that white people are treated more leniently at all stages of the criminal justice process than are nonwhite people for similar offenses. Rather than attacking discrimination against former felons, Doleac’s argument seems based on acceptance, rather than rejection, of employment racial bias generally.
That “speaks to the power of implicit racism that we have tolerated for far too long,” Hodge said, “and that has enabled the permanency of systemic barriers that prevent all black and brown people from having access to the same opportunities as white people in the United States.”