Have you ever pled guilty to, or been convicted of, a crime other than a minor traffic violation?
For the approximately 70 million people in the United States who have a conviction history, this question is the greatest hurdle to obtaining something that greatly helps reduce recidivism: a job. For over three years, the Charlotte School of Law Civil Rights Clinic pursued a grassroots campaign to “Ban the Box” in Charlotte. The clinic lobbied, organized, suffered setbacks, and ultimately convinced Charlotte to remove this question from all job applications that do not have a public safety component or statutory requirement for a background check. Here I present the prescient moments in the campaign’s advocacy story.
Ban the Box: A Primer
Ban the Box asks employers to eliminate the check “box” from initial job applications that requires individuals to disclose criminal convictions. Ban the Box does not, however, prohibit employers from conducting background checks; it just ensures that the check happens later in the hiring process. Employer reliance on background checks in recent years has exploded. For example, in 1996, 50 percent of employers used background checks during the employment application process. As of 2003, the percentage had ballooned to 80 percent, and now anecdotally almost all private and public sector employees seem to have the box.
This practice is particularly troublesome for the 70 million people in this country, roughly 1 in 4, who labor under a criminal conviction. And while empirically determining the exact impact of the box on job applicants is difficult, the prevalence of this crude screening tool certainly deters individuals with criminal histories from applying for a job because they believe that doing so would be futile. And it prematurely screens out otherwise-qualified applicants based solely on having a criminal record.
The box has a disparate impact on employment opportunities in communities of color. African Americans and Latinos have disproportionately high arrest and conviction rates. For example, even though African Americans made up approximately 13 percent of the U.S. population in 2009, they accounted for 28.3 percent of all arrests in the country. And African Americans are more likely to be sentenced to longer prison terms than their white counterparts.
Because of these statistics and the understanding that employment reduces recidivism, activists around the country have waged Ban the Box campaigns. Beginning with All of Us or None’s successful San Francisco effort in 2005 to recent victories in Charlotte and Richmond, 62 local jurisdictions (including five in North Carolina) and 11 states have endorsed Ban the Box policies. And while most reforms target only public employers, 18 apply their policies to private contractors, while Buffalo, Seattle, Philadelphia, and Newark extend it to private employers.
Ban the Box policies vary, but at a minimum all require that the employer eliminate the check box from all job applications that do not implicate public safety. Almost all policies still permit the employer to conduct a background check but only after determining if the applicant is otherwise qualified for the job. And in considering the conviction, the majority of policies require the employer to assess various factors to determine if the conviction disqualifies the applicant from the job.
The Charlotte Campaign’s First Steps
The Charlotte School of Law Civil Rights Clinic opened its doors in the fall of 2010. Its first charge was to conduct research to identify advocacy areas in the Charlotte community. Doing so quickly led students to the unemployment-recidivist spin cycle disproportionately affecting Charlotte’s poor and communities of color.
Wanting to help break this cycle, the clinic launched the Ban the Box Campaign, which began its three-year odyssey with five major players: All of Us or None, the Charlotte Center for Community Transitions, Homeless Helping Homeless, Action North Carolina, and community activist and current Charlotte City Councilor, LaWana Mayfield. By the end of the journey, the campaign had grown to include hundreds of individuals and several private employers.
Throughout the years, the campaign tirelessly organized the community, lobbied Charlotte city councilors, met with city officials (including then-Mayor Anthony Fox, whom President Obama appointed as United States Secretary of Transportation in 2013), and drafted model Ban the Box policies, all to lay the foundation for eventually presenting Ban the Box to the Charlotte City Council. The campaign received a boost when its supporter LaWana Mayfield was elected to the Charlotte City Council in November 2011.
In early 2013, the campaign, based on information from its city council allies and gauging the support in the community, finally felt the time was right to present Ban the Box to the city council during its February 27, 2013, meeting. Prior to the meeting, clinic students led the organizing effort that resulted in an impressive turnout of Ban the Box supporters. Wearing red as the campaign’s symbolic color and holding signs, supporters packed city council chambers.
During the meeting’s public comment time, clinic students, attorneys, ex-offenders, employers with fair hiring practices, organizers, and activists one by one rose to the podium to speak in favor of Charlotte banning the box. During the debate Councilor Mayfield championed the cause to her colleagues. She spoke passionately about how adopting Ban the Box would send a message to the rest of the state and country that Charlotte is a place where individuals who have made mistakes but paid their dues can get a fair opportunity. Several councilors who spoke against Ban the Box cited concerns about workplace safety, wrongfully suggested that Ban the Box would prohibit background checks, and stated that the campaign was a “solution in search of a problem” because Charlotte already has a nondiscrimination policy.
When the mayor called the vote, the audience sat silently and counted heads. The tension was palpable; the campaign’s research indicated that the vote would be close and that it could go either way. By a vote of 6 to 4, the city council agreed to send Ban the Box to the Economic Development Committee for further review. Upon hearing the vote count, council chambers erupted in applause as jubilant supporters celebrated this successful first step.
Dying in Committee Leads to Changing Tactics
The campaign’s city council success, while significant, was short-lived. After one Economic Development Committee meeting, the campaign could see that Ban the Box faced certain death by committee. Despite their best lobbying efforts, allies informed the campaign that it did not have sufficient votes to get Ban the Box back in front of the full city council and that even if it did, a majority of councilors would vote against it. Discouraged but determined to see the effort through, the campaign retooled.
Charlotte has a “council-manager” form of government. Under this model, the city council is responsible for legislative matters, and the city manager serves as the chief administrative officer, which, importantly for Ban the Box, includes the authority to set hiring policies. And as timing would have it, in April 2013, Charlotte hired Ron Carlee as the new city manager. The campaign contacted Carlee to see if he would be interested in discussing Ban the Box.
In short order, the campaign received a response from Cheryl Brown, Charlotte’s Director of Human Resources, stating an interest in Ban the Box and welcoming a meeting. On November 26, 2013, several members of the campaign met with Carlee, Brown, and Deputy City Manager Ron Kimble. Supporters made their case, citing other jurisdictions that have successfully implemented Ban the Box, emphasizing the importance of employment to reducing recidivism, and reiterating that Charlotte could still conduct background checks under the proposal but only after it determined if the applicant was otherwise qualified. An individual with a criminal conviction spoke eloquently about how the box deters people from applying and that people who have done all that the justice system required simply deserve a fair chance to be gainfully employed. By all accounts, the meeting was positive and the attendees left feeling cautiously optimistic.
Here, unlike at the conclusion of the city council meeting, the campaign’s optimism was not misplaced. On February 24, 2014, the city manager issued a memo announcing that Charlotte was banning the box. Recognizing the relationship between recidivism and unemployment and concluding that the box “is not necessary, is contrary to current best practices, and may serve as a deterrent to candidates who otherwise would be qualified for employment in certain City jobs,” City Manager Carlee authorized its removal from Charlotte’s employment application for jobs that do not have a public safety or statutory requirement. While Charlotte will still conduct background checks on all final candidates for employment, the determination of whether or not Charlotte will hire an individual with a criminal history will depend on “the nature of the offen[s]e and the nature of the job for which the person is applying.”
More Work to Do
Needless to say, the campaign and its constituents, after years of determined advocacy, celebrated this victory and hailed it as a step forward for Charlotte and its community. And for its effort, the Clinical Legal Education Association presented the Civil Rights Clinic with its 2014 Award for Excellence in a Public Interest Case or Project.
But the clinic and the campaign are not yet satisfied. They are taking Ban the Box on the road to surrounding municipalities and counties and wading into the private sector as well, hoping to break, or at least to put a dent in, the unemployment-recidivism cycle that traps so many people with criminal convictions. If you are interested in bringing Ban the Box to your city, county, or private sector, please contact me at the Charlotte School of Law’s Civil Rights Clinic.