Research Suggests that Criminal History Discrimination Causes Employers to Miss Out on Good Employees

Criminal history can be a major stumbling block during a job search. Laws at the state and city levels around the country protect job seekers from employment discrimination based on criminal history during the initial stages of the application process. New York City goes even further in restricting the extent to which employers may use criminal history as a factor in hiring decisions. New research about employees with criminal records appears to affirm the validity of these laws and the principles behind them.

“Ban the Box” (BTB) laws prohibit employers from asking about criminal history early in the job application process. The “box” refers to the check box on a typical job application form asking whether an applicant has ever been arrested, been charged with an offense, pleaded guilty or no contest, or been convicted in a court of law. Employers also may not inquire about criminal history during an initial interview. The point in the application process when employers may ask about criminal history varies from one BTB law to another, but it never occurs during the first stage.

New York City’s Fair Chance Act goes further than most other BTB laws. It states that employers may not discriminate against an employee or job applicant because of that person “having been convicted of one or more criminal offenses,” or because a conviction history resulted in “a finding of a lack of ‘good moral character.’” N.Y.C. Admin. Code § 8-107(10)(a). An employer can take conviction history into account once it has made a conditional offer of employment, but if it makes an adverse finding based on that history, it must notify the applicant or employee and give them an opportunity to respond. Id. at §§ 8-107(10)(c), (11-a)(b); see also N.Y. Corr. L. § 750 et seq.

Much of the rhetoric supporting BTB laws has focused on how denying employment opportunities based primarily or solely on conviction history is not in society’s long-term interest, even if it may seem to be in an employer’s short-term interest. If people who have “paid their debt to society” cannot find a job, they cannot fully re-enter society. This constitutes an additional layer of punishment, and by leaving people with few options, it makes recidivism much more likely.

New research suggests that, contrary to conventional wisdom, BTB laws also serve employers’ short-term interests. A preliminary study from sociologists at the University of Massachusetts at Amherst concludes that, controlling for various other factors, employees with criminal conviction history perform just as well as, or even better than, those with no history. The study cannot identify specific causes for this finding, but the researchers have offered multiple suggestions, including “loyalty to an employer who hires you and gives you a second chance.”

The criminal conviction discrimination attorneys at Phillips & Associates advocate for New York City employees, former employees, and job applicants, helping them with claims under city, state, and federal employment laws. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to see how we can assist you.

More Blog Posts:

Federal Agency Expands Protections Against Criminal History Discrimination, New York Employment Attorney Blog, May 6, 2016

State Supreme Court Strikes Down Law that Categorically Bans People with Criminal Convictions from Employment, New York Employment Attorney Blog, April 20, 2016

New York City’s “Ban the Box” Law Could Put Employers in an Unusual Position, New York Employment Attorney Blog, March 3, 2016

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