Impact of Workplace Discrimination Against Ex-convicts

The Effect of Discrimination in the Workplace

Our worth in this society is highly determined by our ability to work, yet those with an honest attempt to function in society face prejudices, discrimination, and legal barriers that consistently deny employment to ex-offenders for years on end. A recent study, released in July 2018, reported that 27 percent out of five-million ex-offenders are unemployed compared to the national average of about four percent for non-offenders; this translates to about 1,350,000 ex-offenders who are jobless (Horn, 2018). This percentage is higher than the total U.S. national average at any point in history, including the Great Depression.

Another study conducted in 2000, states that 60 percent of those released from prison are unable to find employment within a year of their official release (Petersilia, 2000). This is partly due to a conglomerate of reasons: ex-offenders tend to have less education, less work experience, fewer cognitive skills, greater instances of substance abuse, and greater physical and mental health issues (Holzer, Raphael, & Stoll, 2003). Above all, ex-offenders face discrimination solely based on the fact that they are ex-offenders, and given that 56 percent of all incarcerated people are African American and Hispanic, ex-offenders are largely made up of minorities (“NAACP | Criminal Justice Fact Sheet,” 2015).

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This review will briefly explore the history, the employment and earnings of ex-offenders, the assumptions and barriers against prisoners looking for work, and the effect this has on the workplace and in our society. We will also be considering current policies and services that try to improve employment opportunities for ex-offenders.

History

Title VII of the Civil Rights Act is a federal law that prohibits employers with more than 15 employees from federal, state, and local governments from discriminating concerning compensation, terms, conditions, or privileges of employment based on sex, race, color, national origin, and religion. Title VII also states that it is unlawful to limit, segregate, or classify their employees or applicants in any way which would deprive an individual of employment opportunities or their status as an employee due to their race, color, religion, sex, or national origin (“Title VII of the Civil Rights Act of 1964: Know Your Rights,” 2013).

Background checks have been an integral part of the hiring process. Considering that a high percentage of minorities have criminal records—that is, anyone who has come in contact with the criminal justice system (not necessarily implying criminal conduct)—the use of criminal records as a deciding factor for employment ignores the identity of the applicant and is not the best nor the most accurate tool to screen for potentially bad employees. The judicial system is flawed and thousands of innocent individuals have been imprisoned or charged because they couldn’t afford a lawyer. A study done in 2012 estimated that up to 10,000 people may be wrongfully convicted each year (Zalman, 2012).

Gregory V. Litton Systems, Inc., was a leading case against employment discrimination for persons with arrest records brought by a black job applicant who claimed discrimination by the corporation for withdrawing an offer of employment because of his past arrests. The court prohibited the employer from using arrest records not involving convictions as a factor in determining employment since a majority of prisoners are black (Gregory V. Litton Systems Inc., 1970). Therefore, denying an applicant solely based on their arrest records is discriminatory. This policy has been described as “fair in form, but discriminatory in operation.” Even though there was no intent to discriminate, the nature of this policy is discriminatory.

The case that regarded conviction records is Carter V. Gallagher, a class action brought on by minority groups. This case ruled that “a conviction of a felony or misdemeanor should not per se constitute an absolute bar to employment.” This case also led the district to consider applicants with a conviction of a felony that is more than five years old and a misdemeanor that is older than two years old with the exception that the conviction in hand interferes with the duties of the job (Carter V. Gallagher, 1972).

Because of the cases of Gregory V. Litton Systems Inc., and Carter V. Gallagher, the Equal Employment Opportunity Commission (EEOC) now hold any policy against hiring ex-convicts unlawful if the statistics show a substantial percentage of minorities in the hiring area have had conviction records and if such a policy is not necessary for the safety and efficiency of the operation.

Employment and Earnings of Ex-Offenders

Ex-offenders end up in the lowest paying of jobs and the lowest status occupations. It has been reported that in the first year of their release, only 55 percent reported any earnings with the median being $10,090 (Looney, 2018). Most inmates are unskilled and uneducated before coming into prison with little vocational training and most of the training done is in maintenance work. One-fourth of ex-offenders find jobs related to prison work and most of them are unskilled jobs (Goldfarb, 1965). Ex-offenders have a dismal history with a high unemployment rate; if employed, ex-offenders are more likely to only find part-time jobs, work in unskilled or semi-skilled vocations, and have a medium-income that is half of the national average of non-offenders (Pownall, 1969).

Ex-convicts are barred from a multitude of jobs due to the “get tough” movement of the 1980s that increased employment restrictions on convicts out of prison. Though the restrictions can vary from state to state it is generally parallel across the border. Employees in schools cannot have a felony on their records along with tractor-trailer truck drivers, school bus drivers, and officers. Likewise, ex-convicts cannot work in high government organizations such as the FBI or CIA. Restrictions are also set on obtaining or maintaining professional licenses or certifications. Credentials for occupations in the Public Health Department, real estate, pest control, the distribution of pharmaceuticals, insurance sales, athletic trainers, dentists, pawnbrokers, psychologists, massage therapists, major contractors, veterinarians, social workers, physician’s assistants, and radiographers are banned or restricted in most states.

Prisoners tend to be trapped in a cycle of recidivism. Unemployment can lead to drug and alcohol abuse (Petersilia, 2000). Employment can be the deciding factor in breaking this cycle, however, there is little help to ex-offenders both inside and outside the system. Many prisoners are poor or lower class, members of minority groups, and uneducated so many prisoners find themselves in a revolving door of recidivism.

Assumptions and Barriers Against Prisoners

There’s a common schema that ex-offenders are unsafe and that a criminal record equates to risky work performance. Only 12.5 percent of employers say that they will accept job applications from an ex-offender (“The Challenges of Prisoner Re-Entry Into Society” 2016). When in turn employers are missing out on a great opportunity. With the right screening, ex-offenders can work just as well as their peers—if not, better.

In a study done surveying different employers, the main concern for employers came to a consensus of trustworthiness (Obatusin & Williams, 2019). When screening an ex-offender employer's are looking if they can trust the ex-offender. This issue of trust is complex as you cannot come to a conclusion of trustworthiness based on a series of interviews. However, one employer said that an ex-offender cannot be trusted. According to their words’, “he is somebody who cannot be trusted and has a tendency to violate established laws or procedures.”

Recent studies have found that convicted felons tend to be higher in conscientiousness than the average person (Eriksson, Masche-No, & Dåderman, 2017). The schema is that an ex-convict is lower in conscientiousness due to their crimes but this seems to not be the case. This study suggests that because the prison system is strict this may encourage prisoners to develop conscientious behaviors.

A second participant stated, “ex-offenders are people with potentials to add value to the society but had been labeled as bad by the society.” Therefore, another barrier from employers hiring ex-offenders is the risk cost of hiring offenders. This includes the backlash from the customers. Because the societal view of ex-offenders is negative, customers may react negatively if they find out that the person serving them is an ex-offender and thus, can negatively impact the organization. Employers believe this to be too risky because the customers are what drive business. Add along that ex-offenders are not prepared for the workplace and lack basic work readiness skills, thus, adding to the risk factor. Because of this lack of readiness, employers have to spend more time training, investing, and developing the employee; if the employee turns out to be untrustworthy then this would be a waste of resources.

Effect in our Workplace and Society

These assumptions that keep criminals out of the workplace come with great consequences. A report from the ACLU states that not hiring ex-offenders is the worse business move: our gross national product suffers a roughly $80 billion loss annually because of employment discrimination against ex-offenders that also leads to loss of tax revenue for cities. Yet the prison industry makes about $1.4 billion annually.

Hiring more convicts saves the state and the people millions of dollars in costs and taxes. A Florida study estimated that increasing the employment of ex-convicts would save $86 million annually in costs, as the ACLU reports. Hiring more ex-convict’s benefits employers as well. Workers with records are less likely to quit, saving employers on turnover costs. The Gregory V. Litton Systems, Inc. case mentioned previously found no evidence that ex-convicts can be expected to perform less efficiently or honestly than other employees. The court concluded that information concerning an applicant’s arrests without convictions is “irrelevant to his suitability or qualification for employment.” (Gregory V. Litton Systems Inc., 1970).

The cost-benefit calculation of hiring ex-offenders was calculated by Northwestern’s Workforce Science Project. They’ve concluded that “an employer who hired a worker with a criminal record rather than a worker without a record increased its expected theft-related costs by about 2.8 percent of $1,546, or $43. The same employer saved about $746 in turnover costs on that worker.” (Minor, Persico, & Weiss, 2017). The gap between losing $43 on theft and saving $746 on turnover costs is high.

Conclusion

In this paper, we have reviewed the history of the trials and triumphs ex-convicts have faced to reach equality in the workplace, the employment and earnings opportunities offered to ex-convicts—or the lack thereof, the assumptions of society and the perspectives of employers, the barriers that ex-convicts face because of those assumptions and perspectives, and the effect of prisoner unemployment in our workplace and in the economy.

Ex-offenders need pre-release job training to compete for the already competitive job force. Training may help the integration of prisoners upon release, along with goal setting and a support system. Many prisoners upon release have no means of transportation, no support system, and no job thus, influencing the recidivism rates.

Employment is a fundamental interest. The right to earn a livelihood by making a living with an occupation is implicit in the Fourteenth Amendment. The court in Truax V. Raich stated, “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure. Ex-offenders have been withheld from this right by discrimination from society and employers.

Ex-offenders want to and are willing to work. They want to integrate back into society and make their contribution, but how can they do so with little opportunity? Employers can look beyond their faults and find a way to make ex-convicts fill positions. You may not want to hire someone with a history of drug abuse to work in a pharmacy but they could work in customer service or as a data processor.

So, how can we help ex-convicts better integrate back into the workforce? Training within the prison system is a start along with community and family involvement. To encourage the hiring of ex-offenders judicial systems may provide support and guidance to business owners willing to hire ex-offenders. Above all, we should look beyond a criminal record and employers should pick the person who is best for the job, criminal record or no criminal record.

References

1. Carter V. Gallagher. , (1972).
2. Goldfarb, R. (1965). Federal Bureau of Prisons, Pre-Release Guidance Center Study.
3. ‌Gregory V. Litton Systems Inc. , (1970).
4. Holzer, H. J., Raphael, S., & Stoll, M. A. (2003). Employment Barriers Facing Ex Offenders (pp. 4–5).
5. ‌Horn, S. (2018, September). With 27 Percent Unemployment, Jobs Crisis Hits Ex-prisoners the
6. Hardest | Prison Legal News. Retrieved October 24, 2019, from Prisonlegalnews.org website: https://www.prisonlegalnews.org/news/2018/sep/4/27-percent-unemployment-jobs-crisis-hits-ex-prisoners-hardest/
7. ‌Looney, A. (2018, March 14). 5 facts about prisoners and work, before and after incarceration. Retrieved from Brookings website: https://www.brookings.edu/blog/up-front/2018/03/14/5-facts-about-prisoners-and-work-before-and-after-incarceration/
8. ‌Minor, D., Persico, N., & Weiss, D. M. (2017). Criminal Background and Job Performance.
9. ‌NAACP | Criminal Justice Fact Sheet. (2015). Retrieved from NAACP website:https://www.naacp.org/criminal-justice-fact-sheet/
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15. ‌Zalman, M. (2012). Qualitatively Estimating the Incidence of Wrongful Convictions. Criminal Law Bulletin, 48(2).