Employment Discrimination on the Basis of Criminal History: Why an Anti-Discrimination Statute is a Necessary Remedy

Elizabeth Westrope | January 1, 2018

The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to get back on their feet and re-integrate into society. Gaining employment is one of the most crucial steps for returning citizens to take in order to regain stability in their lives. Yet, it remains one of the biggest obstacles. Employers are often wary of hiring persons with criminal records due to fear of liability and the social stigma that frequently attaches to formerly incarcerated individuals. While some remedies exist for returning citizens to clear their record from public view and (in theory) get a clean slate, they are inadequate. This Comment will describe the four most predominant remedies that purport to address the problem of employment discrimination against persons with criminal records: 1) expungement statutes; 2) Fair Credit Reporting Act protections in the context of background checks; 3) Title VII claims; and 4) ban the box provisions. It will then explain how each of these remedies fails to rectify the problem. This Comment argues that an anti-discrimination statute that bans employment discrimination against individuals with criminal records is necessary in order to benefit both the individuals themselves and society as a whole. The conclusion discusses the design of such a statute and ways that legislators should work together to ensure its passage.