DennisBeaverMarch 7, 2015 • By Dennis Beaver

Care to guess the population of Houston, Texas? Here’s a hint: The same number of people are in U.S. prisons, about 2.2 million, and that is a world record.

That’s right, our country has more people in prison than any other, according to the United States Department of Justice.

Of that 2.2 million inmate population, about 150,000 are serving life sentences which means that the others will pay their debt to society by doing time and then released, stepping into the sunshine, finding a decent job, having learned their lesson, never to return.

Of course I was told that by the Tooth Fairy who apparently never heard of the terms recidivism rate or repeat offender. While the figures do vary depending upon the types of crimes committed, within three years, from 60 percent to 80 percent of people sentenced to prison will re-offend.

In many cases, because of something on a job application form, and, as we learned:

“They may have been released, but so many are, practically speaking, still locked up, inside an invisible prison due to a small box on a job application asking if they had ever been convicted of a crime,” we were told by an assistant warden who holds a law degree and has over 20 years experience at well known West Coast prison. We will just call him “Warden Jack.”

“We failed to anticipate the consequences of this growth industry

“As a nation, we failed to anticipate the consequences of a nation which keeps so many people behind bars. When prison building became a growth industry, little thought was given to ways of helping inmates truly re-enter society through employment.

“Professionals in this field openly discuss the fact that the ‘lock’em up and throw away the key’ attitude is working well indeed as a round-trip ticket, back to prison.

“A huge problem is that many employers will not hire anyone who has a criminal record, even when the offense has nothing to do with the job. This attitude is fanning the flames of recidivism.

“If you want to know what drives wardens crazy, it’s seeing a guy who got an education in prison, has ability, grew up, and could become a productive member of society, but that job application form or a background check disqualifies him from employment. Add to that being a minority, and the deck is even more stacked against the inmate,” Warden Jack maintains.

Rejecting all applicants with criminal records can be discrimination

“The saying, Hire the best — Reject the rest, is something that most employers live by. It is common sense — employers only want to best employees. However, today, following this motto could become an expensive legal nightmare, as employers find themselves running afoul of federal laws prohibiting discrimination,” Nashville, Tennessee-based employment attorney Jennifer Lankford makes clear to the lawyers who attend her National Business Institute seminars.

“Dennis, you would be surprised at the number of employers who are engaging in employment discrimination without intending to or even aware that they are doing so,” she explains.

“We call this disparate impact discrimination and it often results from what on the surface appears to be a reasonable, neutral policy — treating everyone the same — but which disproportionately screens out a legally protected group, such as racial minorities.”

“It is well established that African Americans and Latinos are arrested and convicted disproportionately than their numerical representation in the population. When an employer has a blanket policy of not hiring anyone with a criminal conviction — even when the crime has no relation to the job — then more minorities than white applicants are being screened out. This is a classic example of disparate impact discrimination.”

We asked Lankford if this means that an employer must hire any minority who shows up, regardless of having a nasty criminal past.

“Employment attorneys hear that question often, and the answer is that you do not have to close your eyes to a person’s criminal past. But, you need to demonstrate that your policy of exclusion is job related and consistent with a business necessity.” Employers should consider:

  • Requirements of the job
  • What the person was convicted of
  • The time that has passed since the conviction.

“These questions demonstrate whether the exclusionary policy is truly relevant to the underlying job position. As you might imagine, if the person has a history of theft offenses and is looking for a job as a cashier, the person is not suited for employment.

“However, if the applicant had a minor drug offense, years ago, the exclusion is less justifiable,” Lankford concluded.

For our employer-readers, we suggest a review of your hiring practices by an attorney who specializes in Employment Law. Running a business is no piece of cake.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.