Should employers have the right to discriminate against job applicants who have been convicted of crimes? That's the fundamental question that both the city of San Francisco and the federal government are wrestling with as they consider whether employers should be able to take prospective workers' criminal records into account. Not surprisingly, there has been heated debate.
In San Francisco, the Reentry Council, a local governmental body that advocates on behalf of ex-prisoners, called in March for the city to amend its laws to prohibit private employers and landlords from discriminating on the basis of a person's arrest or conviction record. (The law would still allow employers to take criminal records into account when they are directly relevant: schools would not have to hire sex offenders, for instance.)
The Reentry Council — and San Francisco's own Human Rights Commission, which has joined the call for reform — acted because it has become increasingly difficult for ex-inmates to find work. In the current job market, employers can afford to be highly selective, and any brush with the law — no matter how small or how long ago — can be a disqualifier. That rules out a lot of people: about 1 in 4 adults in California and the U.S. has an arrest or conviction that shows up on a criminal-background check.
Adding to the problem is that employers are far more likely to do criminal-background checks than they once were. According to the Society for Human Resource Management, 92% of employers did some kind of pre-employment background check in 2010, up from just 51% in 1996.
It is not surprising that San Francisco would be worried about its ex-offender population. San Francisco was early to recognize the rights of gay people, and it has passed a law making it illegal for employers to discriminate on the basis of height or weight. "San Franciscans are finding ourselves at a familiar moment, looking at a population differently than other people do," says Jessica Flintoft, re-entry policy director of both the Reentry Council and the public defender's office.
What is perhaps more surprising is that San Francisco is actually not in the lead on protecting ex-offenders. Some states, including Hawaii and Massachusetts, already have protections for former inmates (or anyone with an arrest record) applying for jobs, as do cities across the country, from Battle Creek, Mich., to Jacksonville, Fla. San Francisco is still drawing up a draft bill and having public hearings; it is not clear when it might actually adopt a law.
Even though San Francisco would not be first, its decision to consider making ex-prisoners a protected class has been causing controversy and raising hackles among many conservatives. Fox News recently announced that the proposal was sparking "outrage" and declared that critics were calling the idea "a crime in itself."
The idea of extending protection to ex-offenders, however, also has some law-and-order backers, including San Francisco District Attorney George Gascón, the former chief of police. Gascón insists that helping ex-prisoners get jobs and leave their lives of crime behind them makes the city safer. "These people are in the community regardless," he says. "Do we want to marginalize them and keep them on the edge?"