For six weeks, Donnell Fullerton (not his real last name) thought his life was changing for the better.
Fullerton, a native San Franciscan, had found work after a long stretch of unemployment and homelessness. After finding a home in a subsidized residential hotel in the Tenderloin neighborhood, he looked for a steady gig. The work he could find was usually part-time, temporary, or casual until a major hospital offered him a full-time position as a janitor. With a full-time job that paid $17.50 with good health benefits, he no longer was on government aid. For the first time in many years, Fullerton was making life plans instead of just getting by.
Then came the let down. His supervisor called him into the office and told him he was being fired because he had lied on his job application about his arrest record. He had disclosed a handful of arrests in the interview process and none seemed to bother his boss. Yet, he was being terminated for a 1974 arrest for misdemeanor trespassing.
“To tell you the truth, I couldn’t even remember being arrested in 1974,” Fullerton explains. “The closest I could remember is that the police used to sweep our neighborhood a lot, and just picked everyone up who happened to be on the street. I lived right by the Haight-Ashbury and the cops were always on alert. But really I’m just guessing.”
Fullerton’s story is typical of the long-term unemployed, those who struggled long before the 2008 crash and who are likely to do so still through any recovery. He can list off the certificates he holds from just about every job-training program in the city. He’s learned soft skills, hard skills, and interviewing techniques; he’s trained to do customer service, front desk clerk work, and more. He has much training, yet few opportunities to work.
After seeking help from the Lawyer’s Committee on Civil Rights, Fullerton found out that his firing was perfectly legal. Denied unemployment, he’s back on government aid, and isn’t sure what his next move is going to be. The National Employment Law Center estimates that about 65 million people in the United States face potential barriers to employment based on their arrest or conviction records. And those records are getting easier to find. The background check industry has grown exponentially since 9/11. An Internet search of “How to check someone’s background?” reveals dozens of firms that will return a basic check for prices ranging from $10.00 to $49.95, without a person’s consent. One popular site brags that the search is private and that the subject will never know the search was performed.
Ban the Box
Stories like Fullerton’s and many others form the backbone of the national campaign to “ban the box,” meaning the checkbox that goes with questions such as “Have you ever been arrested?” or “Have you ever been convicted of a felony?” The campaign, a series of local organizing efforts coordinated nationally by prisoner rights group All of Us or None, aims to regulate and limit the use of criminal background checks in the hiring process. Ban the Box campaigns have scored an impressive number of victories; over 45 cities and counties and 10 states now ban the box, with 10 of these ordinances passed in 2013. When retail giant Target faced complying with a ban-the-box law in its home state of Minnesota last fall, along with considerable community organizing pressure, it removed questions about criminal history from its job applications nationwide.
Ban the Box legislation varies greatly. Early versions applied only to municipal or state employment, but 15 cities and counties have extended protections to government vendors and contractors, and a small but growing number of cities and states extend them to all private employers. The depth of these protections are also uneven. Some regions simply remove the box from the application and delay background checks until after the applicant is found otherwise eligible for the job. Others go further, denying employers the ability to consider arrests that did not result in a conviction, or requiring that denied applicants be allowed to view their background check results and file appeals.
According to the Congressional Research Service, there are about 1.6 million people imprisoned in the United States, more than in China or Russia. About half of those sentences are for relatively minor drug possession charges. When the incarcerated return home, they join about 850,000 others on parole or probation. For the formerly incarcerated, the bundle of stigma, lack of re-entry resources, and lack of living wage work means that their sentences extend far beyond prison walls. For cities and states, the influx of hard-to-employ people results in increased demand for scarce government services. Manuel La Fontaine, an organizer with All of Us or None remarks, “There’s a perception that formerly incarcerated people deserve whatever hardships we get, for the rest of our lives, no matter how long we served in prison, or what steps we are taking today. While [Ban the Box legislation] isn’t a long-term solution, it allows us to tell a different story about our lives and the lives or our families.”
National Movement, Local Impacts
These campaigns are frequently initiated by formerly incarcerated people, as well as organizations with a traditional economic justice focus. This past summer, Seattle passed an ordinance that had been initiated by residents of Sojourner Place Transitional Housing. The residents participated in a research project about barriers in their lives. After finding out that cities such as Chicago and Newark, N.J., protected people with arrest records, they started the process of pulling together a large coalition to fight for banning the box.
Business groups such as the Seattle Metropolitan Chamber of Commerce initially opposed the legislation, until some compromises alleviated their concerns. “I don’t think that it would have been possible to pass the Job Assistance Legislation if it wasn’t for the organizing of community groups,” explains Brenda Anibarro, a policy analyst with the Seattle Office of Human Rights.
In Kalamazoo, Mich., the Michigan Organizing Project (MOP) spearheaded a successful Ban the Box campaign after a 2010 listening process. Background check reform emerged from dialogue with mostly Latino workers, along with a mandate to work on anti–wage theft legislation. MOP community organizer Allison Colberg explains, “Because of the long reach of the prison-industrial complex, Ban the Box campaigns provide a great opportunity to build solidarity between people. We were able to bring churches rooted in different communities together to work on this.”
“If you have a criminal record, the consequences last a long time after you have completed your sentence. You never really are forgiven when it comes to finding a way to sustain yourself. The way things are now, you really are left with few choices. It’s no wonder that so many people return to criminal activity after release,” remarks Dean Williams, director of the Formerly Incarcerated Citizens Project in Pittsburgh, Penn. In 2012, Williams’s organization won two Ban the Box ordinances, one covering city employment and the other covering city contractors.
While the EEOC prohibits blanket bans on hiring people with felonies, requiring “individualized assessment of the circumstances,” local laws have farther reach than trying to approach the issue through equal employment opportunity claims. “Civil rights law relies on disparate impact analysis. In other words, the individuals that would most likely have a viable claim [on the federal level] based on disparate impact analysis would be African Americans and Latinos,” because they are disproportionately incarcerated, explains Michelle Rodriguez of the National Employment Law Center. “Also, EEOC claims can take a year or more to process. [Local] laws may have the benefit of applying to all people with convictions and can provide a faster, more locally-tailored process.”
In San Francisco, a large coalition is working to change the game for people like Fullerton. Prisoner rights organizations such as All of Us or None joined with affordable housing providers and civil rights groups to build citywide support for an ambitious new Ban the Box legislation. San Francisco already has strong protections for applicants to municipal jobs; the latest campaign targeted almost all employers in the city and regulated background checks for affordable housing admissions as well.
Fullerton has not given up his search for work, but isn’t optimistic about his chances. With the help of the Lawyer’s Committee for Civil Rights, he has started the process of expunging his arrest record, a process that could take months. Since his firing, he has applied for positions at the airport and at local museums, and has yet to hear back from potential employers. In the meantime, when his application for unemployment compensation was contested by the hospital, an administrative judge sided with the hospital, leaving Fullerton shut out of both employment and unemployment compensation.
“I asked the judge if he could remember what he was doing when he was 19,” Fullerton laughs. “He just looked at me and didn’t say a thing.”
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