Bill Would Ban Federal Contractors From Asking About Criminal History Early in Job Application Process

A House committee appears poised to advance legislation that would enshrine in law a policy banning federal agencies from asking about a job applicant’s criminal history until after a conditional offer has been made, and expand that prohibition to federal contractors.

The Fair Chance Act (H.R. 1076), introduced by House Oversight and Reform Committee Chairman Rep. Elijah Cummings, D-Md., codifies the so-called Ban the Box policy in federal law. In 2016, the Obama administration issued regulations to that effect, but the policy did not apply to private companies that do business with agencies, and can be rescinded administratively.

Most lawmakers seemed supportive of the measure during a joint hearing of the oversight panel’s Subcommittee on Civil Rights and Civil Liberties and the Subcommittee on Governmental Operations on Wednesday, although some expressed concern about the policy’s efficacy.

Proponents of banning the box say that for former prisoners, being forced to disclose their criminal record at the start of a job application process effectively blocks them from employment. Companies and agencies use the question as a tool to pare down applications without considering a candidate's qualifications or experience, so moving it to the end of the application process allows candidates with criminal records to compete on a more even footing with the rest of the applicant pool.

Sen. Ron Johnson, R-Wis., who cosponsored companion legislation in the Senate, described his work with a non-profit to help formerly incarcerated people to secure jobs as “the most inspirational activity my staff and I have been involved in since I took office.” He noted the significant impact securing a job has on reducing a former prisoner’s chance of reentering the criminal justice system.

“Those who maintain employment one year post-release have a 16 percent probability of returning to prison, versus a 52 percent probability for those without jobs,” Johnson said. “That is a significant difference.”

Sen. Cory Booker, D-N.J., another Senate sponsor of the bill, outlined the uphill battle former prisoners face in finding a job when they must disclose their criminal history at the outset of the hiring process.

“[Disclosing] a criminal conviction reduces the likelihood of a job callback by 50 percent, something that is acutely felt by people of color,” Booker said. “[The] Fair Chance Act allows qualified people with criminal records to get their foot in the door and be judged by their merit, not a past conviction . . . An employer has a right to know [about a past conviction], but by placing it at the end of the process, it allows them to be judged objectively, rather than having their resume reflexively tossed out.”

Although most members of the House oversight subcommittees indicated they would support the measure, some Republicans were uneasy about whether the policy is effective in improving post-carceral employment. Former Rep. Trey Gowdy, R-S.C., and Rep. Jim Jordan, R-Ohio, have both asked the Government Accountability Office to study the impact of the Obama administration rule on federal hiring of former inmates, and Rep. Chip Roy, R-Texas, ranking member of the Civil Rights and Civil Liberties Subcommittee, cited studies that suggest that in practice, employers could substitute discrimination based on criminal history with broader race-based discrimination.

“[These studies’] analysis said that delaying the disclosure of this information could lead to discrimination of groups more likely to have a recent conviction,” Roy said. “It’s important that we look at that, and that’s why we have this inquiry in for the GAO study that we’re still waiting on.”

Teresa Hodge, a former inmate and longtime advocate of Ban the Box, noted that in one jurisdiction for which data are available–Washington, D.C.–the hiring of people with criminal records has increased 33 percent since the city implemented the policy.

“The crux of that study talks about how Ban the Box is not a cure-all, and we agree,” Hodge said. “But it’s a good first step.”

Subcommittee Chairman Rep. Jamie Raskin, D-Md., noted a number of studies that found that the policy is effective, and said the suggestion that some employers could choose to discriminate based on race is a fundamentally different issue.

“I don’t know that it’s a powerful argument, even if it were true,” he said. “It’s like saying we shouldn’t have a pregnancy discrimination act because some employers say, ‘Then we’ll just discriminate on the basis of gender.’ You can’t use one form of discrimination to justify another form of discrimination . . . the core problem raised by these studies isn’t Ban the Box, but entrenched racism.”

And Rep. Alexandria Ocasio-Cortez, D-N.Y., said concerns about institutional racism in hiring could be the basis of bipartisan cooperation on different legislation.

“If we are truly concerned about race-based and other forms of discrimination in employment, I’d be happy to work across the aisle and work with colleagues to strengthen and expand Title VII of the Civil Rights Act.”