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The PHRC takes a hugely important step
Submitted by Dan U-A on Mon, 01/25/2010 - 9:25am.
Last Monday, some 70,000 Philadelphians participated in the local day of service for Martin Luther King’s. The day- bigger in Philly than anywhere else- is great, because it honors Dr. King by putting people to work in their communities. Of course, in modern times, Dr. King has not only become lionized, but Disney-fied. The” I Have a Dream” speech is now a speech for all people and all political views, including those who have goals directly opposite to King. Are you in pursuit of economic justice? Dr. King is for you! Are you against affirmative action, and school desegregation. Dr. King is for you?
The un-Disneyfied reality is that Dr. King’s last years were pretty rough, as he confronted both the Vietnam War, and general economic oppression. Those battles, he knew, were (and still are) a lot harder to fight than simple de jure segregation. And, those same entrenched issues, including war and the economic devastation of so many neighborhoods and towns in our country, remain.
Today, deprivation still reigns in much of our city and country. In some neighborhoods, unemployment can reach thirty percent or higher. Wait times to see doctors at City Health Centers only increase. Our public schools perform at failing levels. And the statistics for incarceration for communities of color are stunning:
The Department of Justice estimates that the lifetime chance of a Black male going to prison is 32.6%. The lifetime chance for an Hispanic male is 17.2%. By contrast the respective rate for White males is 5.9%.
The rate of incarceration in state prisons and local jails is higher for Blacks than Whites in every single state.
Making matters worse is the reality of what happens on the ground once someone gets a criminal record. In the information age, the vast majority of employers run background checks, and if they see a criminal record, regardless of whether it is has anything to do with the job, regardless of whether the record is a future indicator of anything, they simply turn down the applicant. Forget education. Forget jobs skills. If you have a criminal record, a large, large number of employers simply will not hire you. It is a scarlet letter for life, and it is carried around by a stunning amount of our fellow citizens.
In response to these realities, and the disproportionate effect this has on communities of color, the federal body for anti-discrimination matters- the EEOC- issued a policy statement, which states that turning away job applicants because of a blanket policy about criminal records is “unlawful under Title VII in the absence of a justifying business necessity.” In other words, you cannot simply say “we will not hire people with criminal records,” because to do so has a disproportionate impact on communities of color, who are disproportionately incarcerated.
While that federal policy is good- the reality is that most of the anti-discrimination employment issues in Philly and Pennsylvania do not go through the EEOC. Instead, they go through our state anti-discrimination body, the Pennsylvania Human Relations Commission (PHRC). So, doing its part, the PHRC has released a proposed policy guidance (still available for comment) that will deal with this all head on.
In effect, the PHRC is proposing that if you simply use criminal records to turn people away, without a bonafide reason for using that blanket policy, you will be presumed to be carrying out a policy that has a disparate impact on communities of color. In the world of discrimination law, an employer could still then beat that presumption, but, the burden would be on the employer, not on the person turned away for the job. This is hugely important stuff, because it would mean that instead of using that scarlet letter to shut off avenues to jobs for such a big part of our population, they would have to really consider whether such a broad brush policy is sensible. It would, without question, curtail the use of those internet background checks (which are often wrong) as a first step screening tool.
People dealing with criminal records is one of the bigger civil rights issues of our generation. The fact is that if you are born with a certain skin color, you are far more likely to go to jail. (And get a poor education.) And that record, and everything that comes with it, has become an impossible barrier for far too many people. Mayor Nutter understood this when he created an Office of Re-entry. I know Seth Williams knows this, given everything he has campaigned on. But, when employers have blanket exclusions on hiring, and that exclusion hits on such large parts of our population, they are swimming against the tide. That is why I think it is so important that the PHRC is proposing to do its part too.
We all have to take responsibility for the deprivation, the discrimination, the poor education and the incarceration that falls so heavily on certain segments of our population. This is one hugely important step.
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Definitely hugely important
and would be a radical potential change. A lot of credit is due to Ryan Hancock at the PHRC for developing the proposed policy.
If this issue affects you personally, your family, or the populations you work with, please comment in support! Comments can be sent by email or letter through TOMORROW, and can be any length. And please pass this on.
Fearful of a backlash
I'm concerned that the carrot approach (as opposed to the stick) for encouraging hiring of ex-offendors has hardly been done as well or as thoroughly as it could be.
I'm a little bit worried that while you can certainly argue there is clear evidence for racial bias in any sane analysis of the criminal justice system that its a bit of a leap of logic to say any business that opts to not hire people with criminal records is doing so out of racial bias. For one thing there are lots and lots of people of color seeking jobs who have no criminal record and lots and lots of white people who do. For another, I think there are some socially conservative people of color (lets call them the Cosby-supporters for shorthand) who might be a little put off by the whole tack of the argument.
I'm sure there business owners who feel that their business has special security issues that maybe the PHRC don't appreciate enough in their decision to hire never-convicted applicants. Some of those business owners might even be people of color themselves. One person's "no real reason" is another's "essential to the security of the business".
I fear that there are political risks in terms of potential push back, risks that might hurt the positive, non-punitive case for encourging the hiring of ex-offendors. Even more that there are risks that this approach might empower people who want to devalue the important, more traditional work the PHRC. There are still plenty of hate crimes and patently transparent cases of racial and ethnic discrimination to keep the PHRC busy for decades to come. I fear a back-lash hurting that still important work.
Do you think those are valid concerns? How would you address them politically considering the real make up of the state legislature?
I'm a little bit worried
The argument is not that employers are explictly biased, but that their policies have a disparate impact on certain segments of the population, in violation of Federal and State Law. As for whether people will get angry- it is possible. But, I am pretty sure that much of successful anti-discrimination work has often been deeply unpopular to many people when first implemented.
That is not to discount a potential backlash, but to say that this is a huge, huge, huge problem across our low-income communities, and until policy changes from above, it will remain. As for a backlash in the state legislature, I don't know. My hope is that with people on both sides of the aisle (like Sen. Greenleaf) realizing that our criminal justice system is fundamentally flawed, that it will be OK.
Point taken
Very, very true.
I would just point out that a lot of the historic discrimination actually hurt businesses' bottom line but the owners were just that "committed" psychologically to racial injustice as "normal". Keeping African Americans from getting jobs as trolley drivers if anything reduced the labor pool, for example. Many business owners, including African-American ones, might feel more strongly than the PHRC that their decision to not hire ex-offendors of any background was based on a desire to say reduce theft or whatever. Some of that, you and I may feel is not borne out by the reality of ex-offendors on the job, but it is ultimately their business.
If business owners believe this is going to cut into their bottom line or unfairly cut into their decision making process or reduce the safety of their workplace some are likely to object on that alone. Thats probably unfair to ex-ofendors but its not racially motivated.
Agreed - the disparate economic impact of so many ex-offendors has a huge, huge impact on low-income communities, including occasionally white rural ones in Appalachia. Its just important to remember that when some people look at disproportionate conviction rates of people of color that their reaction is that we have to do a better job of being as "tough" on white criminals.
I would just hate for the potential positive economic argument that we can no longer afford to "throw away" ex-ofendors gets lost in approach that debatably over extends in terms of recasting a largely economic form of disparity into mostly racial terms.
I guess I don't want stronger positive reinforcements for businesses to hire ex-offendors to suffer from a back-lash. There is still a lot that can be done on that front.
I hope this helps
It is the expressed public policy of the Commonwealth to foster the employment of all individuals in accordance with their fullest capacities and the opportunity to obtain employment in Pennsylvania is a civil right that must be provided irrespective of race, color, religious creed, ancestry, age, sex, national origin or non-job related disability. The Pennsylvania Human Relations Commission (PHRC), the governmental body which administers and enforces the Pennsylvania Human Relations Act (PHRA), “recognizes that to safeguard the right to obtain and hold employment without unlawful discrimination and to assure equal opportunities requires the elimination of policies and practices that have a disparate impact on one or more protected classes under the PHRA…”
The proposed PHRC policy states, “Employment policies or practices that disqualify individuals from employment on the basis of a prior criminal conviction may violate state and federal rights statutes.” The proposed policy is intended to provide both guidance and assistance to those who come under the jurisdiction of the Commission (four or more persons within the Commonwealth). In other words, the proposed policy is intended to notify employers that their criminal record policies and practices may violate the PHRA, provide guidance on how employers may avoid liability under the PHRA and educate both employers and citizens their rights under law.
"I'm concerned that the carrot approach (as opposed to the stick) for encouraging hiring of ex-offendors has hardly been done as well or as thoroughly as it could be.
I'm a little bit worried that while you can certainly argue there is clear evidence for racial bias in any sane analysis of the criminal justice system that its a bit of a leap of logic to say any business that opts to not hire people with criminal records is doing so out of racial bias. For one thing there are lots and lots of people of color seeking jobs who have no criminal record and lots and lots of white people who do. For another, I think there are some socially conservative people of color (lets call them the Cosby-supporters for shorthand) who might be a little put off by the whole tack of the argument."
First, as posted above, the policy does not state nor stand for the proposition that a “…business that opts to not hire people with criminal records is doing so out of racial bias.” In this case, disparate impact analysis applies to facially neutral policies that produce a severe disparate impact on Black and Hispanic populations due to the significantly higher rates of criminal convictions experienced by these populations in Pennsylvania. Therefore, under a disparate impact analysis, it is statistical evidence which is important and not proof of “racial bias.” Finally, the proposed policy provides employers an opportunity to rebut the presumption of a disparate impact by utilizing conviction data from a more limited geographical boundary. This data may show that the employer’s criminal record policy does not have a disparate impact on one of the Commission’s protected classes and therefore not in violation of the PHRA.
Second, criminologist have repeatedly found a “strong and consistent negative effect” of a prior conviction on an individual’s employment prospects. For example, a 2009 study from New York found that a criminal background reduced a Black job applicant’s chances of receiving a callback from prospective employers by 60%. By contrast, the respective reduction in the callback rate for similarly situated White applicants was 29%. In addition, several studies have found that Black applicants without a criminal background had roughly that same chance of receiving a callback as similarly situated White applicants with a criminal background. See Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records, 623 Annals of the American Academy of Political and Social Sciences, Devah Pager, Bruce Western, Naomi Sugie (2009). It is also clear that unemployment exacerbates the rate of recidivism among ex-offenders.
"I'm sure there business owners who feel that their business has special security issues that maybe the PHRC don't appreciate enough in their decision to hire never-convicted applicants. Some of those business owners might even be people of color themselves. One person's "no real reason" is another's "essential to the security of the business"."
Under the proposed policy an employer must show that their criminal record policy is justified by business necessity. In order to demonstrate business necessity, an employer must show with “some level of empirical proof” that the individual excluded from employment posses an “unacceptable level of risk.” For example, an employer should consider the following when determining if the applicant poses an unacceptable level of risk: the circumstances, number and seriousness of the applicant’s prior offenses, whether the prior conviction substantially relates to the suitability of the job, the length of time that has elapsed since release from incarceration and evidence of the disqualified individual’s rehabilitation. It is also important to note that the proposed policy states, “the Commission recognizes that various state and federal law require some employers to obtain criminal records and reject applicants with certain convictions from employment.” The proposed policy makes clear that policy has no impact upon these laws.
"I fear that there are political risks in terms of potential push back, risks that might hurt the positive, non-punitive case for encourging the hiring of ex-offendors. Even more that there are risks that this approach might empower people who want to devalue the important, more traditional work the PHRC. There are still plenty of hate crimes and patently transparent cases of racial and ethnic discrimination to keep the PHRC busy for decades to come. I fear a back-lash hurting that still important work."
The PHRC does not have jurisdiction over “hate crimes” committed in Pennsylvania.
Corrected on hate crimes
I guess that really does fall under criminal law. I though it was partially the PHRC's perogative to investigate instances of things like cross-burnings, racially-motivated grafiiti, that kind of thing. Perhaps I using the term too loosely or am I just wrong on that?
OK back on the meat of the subject. The devil in the details as the expression goes is what you think will constitute "some level of empirical proof" for employers that want to use the "Have you ever been convicted of a crime?" box as part of their screening process. Will the PHRC require potentially employers to submit their applications or document their interview process to prove non-bias? Do you see the PHRC wading into whether a grocery store categorically refuses to hire ex-offendors as a cashier? Do you see this measure as aimed at eliminating the "Have you ever been convicted of a crime? If so explain." question entirely?
The City of Philadelphia uses that last question currently on their applications right now, for example.
Perhaps you can clarify the impact you think this will have more specifically.
Similar evidence of a disparate impact..... but
I just heard on the radio today that unemployment rates among white men with criminal record is the same as among black men with no criminal record (more or less? I don't remember exactly).
But here is my concern - and one that I think maybe max_g is speaking to. How much of this is really an issue of class as opposed to race?
How do unemployment rates in poor black communities compare to rates in poor white communities? What is the incarceration rate among black males who grow up in middle class communities, how does it compare to incarceration rates among whites who grow up in poor communities? I'm quite sure that race, isolated from class, continues to be an influencing factor -- but to what extent? Your numbers about the disparate influence of race on the impact of a record on call-backs are relevant (and pretty indicative of a heavy influence of race) - but what are the numbers if they are controlled for economic status?
I understand the logic you describe above of basing legal action on disparate impact - but is there an important unintended consequence of extending, beyond the real impact of race versus class, a focus on race as opposed to class as the operative variable?
Tying this back to Dan's original post - it certainly is interesting that MLK (not to mention Malcolm X) seemed to be shifting towards a focus, to some degree, that issues of race discrimination and class inequality are inseparable and shouldn't be viewed as distinct problems.
For discrimination law, why
For discrimination law, why should that matter? What you are saying is that African Americans, when you control for income, may not have any higher levels of incarceration. So, let's assume that is correct. If true, does that mean that a blanket policy against hiring people with records has less of a disparate impact than it would otherwise? Not really, no. Because this is not about whether an employer is racist. It is about whether a policy has a disparate impact.
Some quick use of the google found one potential answer, from the freakanomics guy:
Right, so, if we control for all those other things, African-Americans aren't incarcerated more. Which says that African Americans are not magically pre-disposed to crime, etc. Unfortunately, in real life, we cannot control for all those other things, and so, a policy that has a blanket ban on people with criminal records will hurt communities of color much more, which is a textbook example of a disparate impact.
I will put it to you like this- much of how discrimination law evolved in the 1990s under Clinton (and then reversed under Bush) was looking at disparate impacts of facially neutral policies. This was how red-lining cases came about, for example. No financial institution these days would say "give crappy loans to African Americans" or "don't lend in Hispanic areas." No employer would day "don't hire women." Instead, they had facially neutral policies that led those results and gave crappy outcomes to particular segments of the population, in violation of federal law. (And, obviously, being poor is not a protected class.) Even if there was some other variable, such as how credit scores were designed or how much someone had to be able to lift, if your law had a disparate impact, and there was no legit rationale for it (or a better way to go about that goal), then you had a problem. To me, that is very, very good policy.
In short, if you disagree with disparate impact analysis, you agree with John Ashcroft. (Basically joking).
Edit: And, if you are waiting for something else, such as the government making poverty a protected class before you act, then I think we will be waiting a while.
Yeah, well, as I was just saying to my bud Johnny A.
Obviously, given the incarceration rates, blanket policies against hiring applicants with records will impact the black community disproportionately, so I'm not saying that I don't understand the reasons for disparate impact analysis or agree with the need for laws based on that kind of analysis.
I'm just speculating whether there aren't some large-scale unintended consequences of policies that can potentially, indirectly, distract from a clear understanding of to what extent class, as distinct from race, drives systemic and multi-generational poverty. I'm asking questions here.
I'm not suggesting that should mean that we don't have these kinds of policies, but that they should be, to whatever extent possible, viewed and promoted in full context.
Devil's advocate ot the nth degree
Please take this a friendly query about objections you will likely hear from others in less friendly terms.
So yes I get the argument that if some policy has a disparate impact, even if unintended, that there is a foothold to examine if specific instances of that policy is in fact discriminatory against a protected class, like race. But anytime you talk about people convicted of serious crimes, you beg the question of personal responsibility.
I'm not interested in over selling this argument personally because I'm a fan of the idea of rehabilitation but I can easily see push back based on the idea of personal responsibility that says doing crime is not like merely living in a zip code and not being offered competitive mortgages because people who do crimes are directly responsible for putting themselves into the discriminated class (convicted ex-offendors).
As I understand it, this policy would say that if an employer had a policy of not hiring ex-cons to handle money that they could be asked to specifically justify why they don't hire rapists or people convicted of crimes of violence, since those crimes have nothing to do with theft, if their hiring policy led to an unintentional racial disparity in hiring.
Pragmatically, a lot of people, judges included, are more likely to support preventing social conditions that encourage bad moral choices, rather than putting an extra burden on employers for the bad choices job seekers have made in their previous life.
Chosing to commit a crime is not like being born into a "bad" zip code. Some individuals in the same situation make different choices. By breaking the social contract, you take unique responsibility for bad results of that choice.
Class study
“but what are the numbers if they are controlled for economic status?”
A recent study in NY which controlled for economic status found that Black Applicants without a criminal background had roughly the same chance of receiving a callback as similarly situated White applicants with a criminal background. See the Pager study above. This finding was again confirmed in a October 2009, which reports that “Black and Latino applicants with clean backgrounds fared no better than a White applicant just released from prison.” See Race at Work: A Filed Experiment of Discrimination in a Low-Wage Labor Market, American Sociological Review, Devah Pager, Bruce Western, Bart Bonikowski (October 2009). The studies cited above confirm what you heard on the radio today.
Thanks for that information
A Google search turned up that the teams of black and white men in the study were matched in their resumés and differed only by race. So then, in effect, stereotyping exacerbates the impact of the disparities in incarceration rates. (And also, for at least some percentage of the employers involved, discrimination IS a factor).
Not surprising, really.
Yes that sounds like racial discrimination - full stop
Not indirect, unintentional racial discrimination as a result of not hiring ex-cons. That sounds like some employers give white ex-offendors a chance they don't give minority ex-offendors, not that they don't give ex-cons a chance at all.
So not surprisingly, racial discrimination is still very much a reality in the American workplace but it doesn't necessarily indicate that this particular legal strategy is going to effectively address the basic problem - that some employers simply hire white applicants over black applicants with the same qualifications - no matter what. Great argument for traditional affirmative action but not necessarily a home run for the whole strategy of disparate impact of not hiring ex-cons. It fills in the picture of racial discrimination in America but doesn't necessarily tip the ballance either way on disparate impact.
I could see an employer who disagrees with the PHRC's definition of what constitutes a compelling reason to not hire ex-cons say "Go after employers that directly discriminate on race but leave me alone" and taking that all the way to the US Supreme Court. With this current U.S. Supreme Court, I would not be surprised if they win.
Do you think it was all
Do you think it was all intentional discrimination on the part of those employers, or based on any sort of explicit policy?
I doubt it.
I'm not sure I understand your question
The study speaks to the effects of "stereotyping." How do you see a distinction between intentional discrimination and stereotyping? Making hiring decisions on the basis of stereotyping, on the basis of racial identity, is a classic example of racism. The racism exists at two levels: the first level is that they judge individual applicants on the basis of racial stereotypes, and the second level is that they act on those stereotypes by not disproportionately not inviting black applicants for interviews. The stereotyping may not be a policy which is officially codified, but how is it not an explicit policy of a potential employer?
Look at the recommended interventions:
How is that recommendation compatible with prosecuting employers for having blanket policies?
Again, just to be clear, I do see the benefits of this kind of policy - but I'm questioning whether it suggests a lack of clarification about what is the causal factor affecting employment rates. Is there any problem created by focusing interventions on an exacerbating condition and not on the underlying problem? The blanket hiring policies compound the causal factor - which at least in this study is racism.
Depends on what you mean by "intentional"
The employer might not admit to themselves that its discrimination but they could justify it by a million things the person is less responsible for having as a characteristic than being convicted of a serious crime.
"Jamaal just did not seem as 'professional' as Justin".
Is your question about how efficient forcing employers to document their decision not to hire ex-offendors will be- like will it make a big difference on race and hiring? I don't know. I'm more skeptical than you on that front. I'd rather bribe owners to get over stereotypes about hiring ex-cons than pursue a policy that just adds CYA steps to the hiring practice but might underwhelm in results.
Ultimately it seems like in terms of the law it will come down to personal responsiblity for committing crime versus an abstract disparate impact argument. From a merely political perspective I bet personal responsibility wins in the court of public opinion. In terms of the law, I don't know.
In terms of the carrot- do
In terms of the carrot- do you want to guess how many people took advantage of the city's tax credit for hiring ex-offenders?
My guess would be that all the ex-offenders were hired
because all that businesses care about are tax breaks, and therefore every business hired every ex-con they could find.
For the first year at least,
For the first year at least, it was a biiiiig round number.
The person appointed to run the program
also turned out to be wildly irresponsible for being accountable with his budget in that first year and was at one point the subject of some serious accusations of mismanagement. His current position has been greatly reduced in scope, at least from what I read. At the very least the performance of that office under Cuie is probably not the gold standard of how a reentry program could be run.
On the flip side what evidence do you have that this policy won't be most successful at just generating a lot of litigation work for a few lawyers? Or at making the PHRC's funding for its more traditional work a political hot potato under a Republican governor and Republican controlled State Senate? Nothing makes business owners happier in a recession than a new layer of bureaucracy documenting why they feel their jobs have security issues they would not choose to hire ex-cons of any ethnic background for. I'm sure the state Chamber of Commerce will be beating down the state legislature's doors urging more funding for the PHRC after this policy is applied to a few security-nervous businesses.
Look, I'm skeptical that the end result of this policy after various lawsuits are filed will make a substantive difference compared to other types of job programs for ex-offendors and you think it will. There is, I suppose, only one way to truly find out how it actually plays out.
Just be aware that there is a political stream in this state that is very skeptical of what I believe are the very positive contributions made by the city's and state's Human Relations Commissions. At a state level they'd love to find political hay to cut funding entirely. They are very activated right now - Tea Party's, etc. Dramatically redefining the PHRC's mission in a way to put a possibly heavy burden of proof on businesses that are hesitant to hire ex-offendors for reasons unrelated to race involves a certain amount of political risk.
Consider that risk carefully. That's all.
As you point you can't make omlettes without breaking a few eggs, just consider that just because a legal approach is novel does not mean that it will ultimately triumph and that no action takes place in a political vacuum. Otherwise rock on. Your intentions are noble.
Oh Sean
I knew the liberalish, voluminous concern-trolling sounded oddly familiar.
Sean, you are really embarassing yourself. I renamed your screen name to be clear.
Not sure why
Its all just political pontificating. I go where the conversation is interesting, if it is an interesting topic. I'm not responsible for your discomfort with ideas that don't line up with your preconceived simple boxes.
Perhaps I should apologize for taking the time to read your post and consider it carefully?
Yeah dude, you like, blew my
Yeah dude, you like, blew my mind with your penetrating analysis. Far out. Totally wild.
Liberalishism Is A Major Ideology
Liberalishism is a major ideology of our times. It deserves more attention than it has gotten.
It's sort of got the same relationship to liberalism
as truthiness has to truthfulness.
it sounds like , from the tone of your responce, you think that
giving tax breaks to businesses to hire ex offenders is not good policy. why?
FDR was a great president
greatest of the last century, and if you quote him chapter and verse to solve every problem of the 21st century, you'll often come up with great answers.
You definitely mean well too.
But sometimes your answers are not going to work out.
Times change, just as economies and electorates change, and sometimes positions need to change as well.
No matter how liberal you may think you are, if you find yourself intransigent or exclusive-ist, my opinion is you are also a little bit conservative.
Interesting comment, Sam, but what does it have to do
with disparate impact analysis? FDR couldn't have even imagined the concept, much less doing something about racially discriminatory impacts, at a time when a Jackie Robinson playing in the major leagues was considered ridiculous.
If your comment is in response to the mini-threads at the end of Dan's post, I would suggest that we haven't tried FDR type solutions to problems for quite a while. Indeed, I can't tell you how many times over my political life I have rued the fact that Democrats have pretty much forgotten that man's name, not to mention his legacy. If Obama didn't continue the policy of nearly ignoring the accomplishments of this country's greatest Democrat, maybe he could have put through a stimulus that was actually big enough to tackle the problems he inherited.
Too much FDR around in the public debate? Hardly.