A few months ago, Melissa was standing outside her welfare-to-work program in Downtown Brooklyn, about to go to a job interview. It was the same routine she has performed for six months, every day, Monday through Friday. She projected confidence about her abilities and her experience, but not about her chance of getting the job.
“I’m a people person, and I always ace every interview I go on,” she said. “It’s just my background that’s holding me back.”
When Melissa was 15 years old, an older man began manipulating her, ultimately becoming her pimp.
When she was 19, she was convicted for her third, and final, prostitution-related offense. For Melissa, who asked that WNYC not use her last name, that was a turning point. Six years later, she has her GED and years of work experience as a cashier and home health aide—jobs she took to support her younger brother and two-year-old daughter.
As she searches for a job in today’s tough job climate, however, she is finding that job experience matters less to many employers than her three convictions.
It’s a problem that millions of New Yorkers with criminal records face when they look for employment. In 2011 alone, nearly 250,000 people in New York were convicted of crimes serious enough to warrant fingerprinting. And while employers are barred from pre-emptively excluding anyone with a criminal record, many do.
In New York, a Model Law
When it comes to getting a job, New York leads the country in legal protections for people with criminal records. For nearly 40 years, Corrections Law Article 23-A has required that employers treat each job-seeker as an individual, instead of screening out all applicants that fit a certain profile.
When the federal agency that polices employment discrimination issued the first new guidelines in two decades on the subject, it cited that principle as a “best practice.”
“They’re basically suggesting to employers that employers should follow the New York standard,” says Richard Greenberg, an employment lawyer at Jackson Lewis.
The New York standard started as an idea of law professor Michael Meltsner and two of his students at Columbia University.
The law they created said that businesses could only deny someone a job due to their past convictions or arrests after considering eight factors, including the seriousness of the crime, how long ago it occurred and its relevance to the job. It was, and still is, unique among state laws, according to Meltsner.
“The notion wasn’t that embezzlers should have a right to work in banks,” says Meltsner, now a professor at Northeastern University. “The focus of the law was on providing a remedy for those whose crime had nothing to do with their employment goals.”
The goal was to stop a vicious cycle: People with criminal records find it harder to get a job, but not having a job makes it more likely they will re-offend.
“It was a great formal victory,” he says. “The problems, of course, came afterwards.”
Legally, employers in New York can only reject someone like Melissa after considering her age at the time of her convictions, the seriousness of her offenses and her recent years of good conduct. They would have to make a determination that there was a “direct relationship” between her convictions and the job or that she posed a threat to public safety.
Hearing Melissa’s story, Meltsner said: “The law was written to protect people just like that.”
But Melissa has been rejected time and time again.
“Unfortunately,” she said, “my future is basically jeopardized because of my past.”
When she applied for a job at a home health care agency, she said she was not only rejected—she was told to “seek another line of work.”
At a New York City tourist attraction, Melissa was offered a job selling tickets, only to have it rescinded the day before orientation.
In an email she received, the company explained its reason: “We must withdraw our offer for the Admissions Associate position due to the background check.”
“There should be no reason why someone with that type of history shouldn’t have that kind of job,” said Clifford Mulqueen, deputy counsel for the New York City Commission on Human Rights, which processes employment discrimination complaints. He said Melissa could have a strong legal case.
“If that person really exists,” he said, “you tell her to come in here.”
But Melissa didn’t file a complaint.
“I know that’s going to take a long process,” she said. “At the end of the day, I don’t want to cause trouble for anyone. I just want a job.”
According to Metlsner, these are some of the main problems with the law he wrote: enforcement and reliance on individuals to file complaints.
“The enforcement that's occurred over the years since the law was enacted has basically been individual cases,” he said. “And you can win dozens of individual cases and not really change the behavior of large numbers of employers.”
Breaking the Law
To see employers flouting the law, all you need is the Internet.
Job postings that ban all applicants with criminal records are “blatantly illegal” because they rule out any possibility of individualized analysis, according to Sally Friedman, legal director of the Legal Action Center.
But on the job posting portion of Craigslist, a slew of such ads state: “absolutely no felony convictions,” “must have clean criminal record,” or “completely clean record.”
“Employers would never post illegal requirements like this for categories such as race, gender, religion,” Friedman said, “but when it comes to criminal records, a lot of employers do not realize that the law even prohibits these practices.”
Employment lawyer Richard Greenberg admitted that ignorance of the law is an issue.
“I’m never going to assume that every employer is fully aware of the law,” he said. But he added that most large companies are aware and go through the procedures of discussing the legally required factors.
“Whether or not it changes the decision maker’s judgment, or whether or not that decision maker is going to be more lenient: that’s a separate question,” he said.
The result may be a form of discrimination that is harder to see.
More common than outright rejection for people such as Melissa, is to not get a call back. When that happens, Melissa often assumes it’s because of her record.
“When an employer has two applications in front of them...but she checks ‘no’ for the box that says conviction and I check ‘yes,’ of course they’re gonna go with her,” she said.
The New York City Hiring Discrimination Study set out to test that hypothesis. Researchers recruited young men who were similar in everything from height to physical attractiveness and then sent them to 250, low-wage employers with fictitious resumes that were identical with one exception: one had a minor drug possession conviction.
The difference in how they were treated in person was minimal, but the difference in outcomes was dramatic: The job applicant with a conviction was nearly 50% as likely to be called back or receive a job offer.
Devah Pager, a Princeton sociology and public affairs professor, was the study’s lead author. She noted there was parallel with racial discrimination.
“The kind of overt bias have diminished substantially,” she said . “But there’s still a huge amount of unconscious and subtle bias.”
Avoid background checks
Melissa’s strategy to combat that possible bias has been to simply avoid applying for jobs that do background checks. This in turn limits her employment opportunities. More than two-thirds of employers require background checks for every single employee, according to the most recent survey of the Society of Human Resources Managers.
But for the moment at least, her strategy has worked.
A job developer at her welfare-to-work program told her a grocery store chain was hiring cashiers, no background checks.
She laughed with a mix of joy and relief as she talked about getting the job.
“Something finally came through for me,” she said.
It was part-time and minimum wage--a paycheck of around $175 a week. She said she would keep looking for full-time work and pressing for more hours. “But it’s something better than nothing.”