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While San Francisco has been debating the issue, the federal Equal Employment Opportunity Commission (EEOC) held a hearing in Washington, D.C., last week on the question of whether employers are allowed under existing federal law to consider job applicants' criminal histories.
The EEOC says the use of criminal records in employment matters can constitute racial discrimination since minorities are more likely than whites to have been arrested. The commission has long-standing guidelines saying that employers must take into account the age, seriousness and relevance of a person's criminal record before they consider it in a hiring decision.
Discrimination law raises difficult questions because it forces us to think about what kind of distinctions society should allow. Race, religion, national origin, sex and disability are easy: most Americans generally agree that they do not want people to be discriminated against on those bases.
But other issues are not as clear-cut. Is San Francisco right to bar employers from discriminating on the basis of weight? Is New Jersey right to make it illegal to run a help-wanted ad saying that unemployed people will not be hired? (Reports of growing numbers of employers refusing to consider job applicants who are currently unemployed make it even harder for ex-convicts to find work.) There might be rational reasons for taking those factors into account. Employed people may be more skilled on average than the jobless, and tall people may be better at reaching the top shelves. But discrimination law is about what kind of a society we want — and many of us do not want one in which short people or people who have been laid off cannot get a fair shake.
In the case of former convicts, employers may think they have good reasons for favoring people with clean records. They may believe that people who have never been arrested before are more likely to obey the law and less likely to be dangerous.
The problem is, if everyone acts on those beliefs, we will end up with a society in which some people who have messed up even just once never get a chance to turn their lives around — and we will have a permanent class of unemployable ex-offenders who find themselves with few choices other than returning to a life of crime.
San Francisco, the EEOC and all levels of government should do what they can to reduce discrimination against people with criminal records — because it is not just better for the ex-offenders, it is better for all of us.
Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday. You can continue the discussion on TIME's Facebook page and on Twitter at @TIME.