Tyrae T. and N.R. needed what any thirtysomething American without regular income needs: a well-paying job. They were both ready and eager for work, yet both were turned down for numerous entry-level positions they were qualified for. The reason? Criminal records. Tyrae and N.R. have never been convicted of any crimes, but they face a problem that afflicts millions of low-income Americans: arrests without conviction that are improperly used as grounds to deny employment.
Job applicants with criminal records, especially men of color, face a high hurdle to employment. Studies have shown that black men without criminal records get callbacks for job interviews at rates below those of white men with criminal records; and for a black man with a record, the callback rate is almost negligible.
Arrests that never led to conviction shouldn’t affect employment—innocent until proven guilty is a fundamental principle of American justice, after all. Because there is a presumption that arrests without convictions don’t hinder employment opportunities, this issue has received far less media and political attention than the employment obstacles created by past convictions. But the fact is that when it comes to getting jobs, a mere arrest can be just as bad as a conviction for millions of people like Tyrae and N.R.
Many companies conduct pre-employment background checks using FBI rap sheets, which are notoriously hard to read: employers often can’t discern whether the charges resulted in conviction, were withdrawn, or dismissed.
State-level databases can be equally confusing. In Pennsylvania, if an item turns up when an employer runs a background check through the state police, the system immediately responds with a generic code, indicating that details will follow within four weeks. If someone only has arrests on his record, the report eventually comes up clean, but many employers won’t wait that long for the clarification—they simply move on to the next job applicant.
Other employers use unofficial court records, often available online for free. In Tyrae’s case, two arrests—one seven years ago, the other fifteen—were visible to employers with just a few mouse clicks, and the mere existence of the arrest reports cost him multiple job opportunities. As for N.R., the companies interested in hiring her didn’t give any weight to her recent bachelor’s degree—once they learned she was arrested on a misdemeanor four years ago, they stopped calling back.
Courts will sometimes order the expungement of arrests from criminal records, but even that doesn’t always solve the problem. Private consumer reporting agencies—which sell background reports to employers—often maintain databases that include outdated court records; so arrests which were expunged are sometimes still reported to employers.
The Equal Employment Opportunity Commission notes that excluding applicants based on arrests-only has a disparate impact on black and Hispanic workers, and thus constitutes employment discrimination. Therefore, under federal law, “an arrest record standing alone may not be used to deny an employment opportunity.” In Pennsylvania, state law also says that employers may only consider convictions if they are relevant to an applicant’s suitability for a given job. However, as Tyrae, N.R., and thousands of other people have discovered, these laws are widely and routinely violated.
The good news is that advocates can employ a number of strategies to lessen the burden of arrest records. In many states, legal services attorneys can petition the courts to expunge or seal arrests. In Philadelphia, Community Legal Services (CLS) did just that for N.R. and Tyrae, so their records are now completely clear. When black and Hispanic workers are rejected as job candidates due to arrests, advocates can help them file discrimination charges with the EEOC or state and local fair employment practices agencies. People denied jobs due to arrests may also be eligible to collect back pay, and offending companies can be forced to change their policies. Finally, when consumer reporting agencies tell employers of arrest records that the courts had ordered expunged, workers who are denied jobs can sue the reporting agency, and also demand a correction of the background report. CLS has successfully brought cases for our clients in all of these areas.
States should now adopt fair chance hiring laws that include reforms like “Ban the Box”—which precludes employers from inquiring about criminal records on job applications—and implement other important protections such as not considering non-conviction arrest records.
But perhaps the single most effective legislative change would be to expand opportunities for the expungement and the sealing of records. Advocates can push their states for automatic expungement whenever possible—such as when charges are dropped after an arrested individual completes a pre-trial diversion program—and for a clear legal right to petition for expungement of all other non-conviction data.
A clean slate is the best pathway to employment and equal opportunity.