Here’s more good news for Labor Day weekend: A multi-racial coalition recently scored an encouraging, long-fought legislative victory in Massachusetts, making theirs only the second state to "ban the box" on employment applications for both public and private sector jobs. Employers in both sectors in the state can no longer ask about an applicant’s criminal record. This common sense policy, which will remove a significant barrier to the formerly incarcerated successfully reentering society, isn’t nearly common enough.
The public-private combination of the Massachusetts ban is critically important. To date, Hawaii is the only other state to cover both sectors, and that was way back in 1998. As a June 2010 report of the National Employment Law Project details, in the past fiver or six years, about 20 cities and counties around the nation have banned the box–a reference to the criminal history check box many job applications include. But the vast majority did so for local government jobs exclusively. A handful of cities, like Boston and New Haven, Conn., have banned it for private vendors who contract with the city.
But thanks in large part to years of sustained effort from advocates, Massachusetts Gov. Deval Patrick kept a campaign promise and last month put pen to paper on broad reform of laws governing what’s called CORI, short for criminal offender record information. Neighbor to Neighbor Massachusetts Campaign Director Wilnelia Rivera correctly credits the Bay Area ban-the-box champion All of Us or None for introducing the idea. But Rivera’s organization gets lots of credit for Massachusetts’ win. Neighbor to Neighbor helped broaden an interfaith campaign based in Boston into a statewide force. Thanks to the faith community’s links to law enforcement, the coalition was able to promote the idea one police chief at a time, and eventually won the endorsement of a major police association in the state.
Along the way, the coalition’s effort suffered a racist, right-wing backlash, according to Rivera, particularly online and on talk radio. Images of locked up black and brown men dressed in orange jumpsuits accompanied some of the press coverage. One unsupportive editorial framed CORI reform as "allowing people to escape their past, when we should be encouraging them to be honest about it." So they can be automatically disqualified for work even when their criminal record has no bearing on their ability to perform in the job? "Everyone deserves a second–even a third–chance," the editorial offered, "and we’d hope most employers recognize that."
How comforting. Pardon racial justice advocates for seeking a more robust guarantee to equitable opportunities for success. Moreover, the public safety excuse for blanket employment discrimination is a red herring. Essentially every municipality or state with any sort of ban the box policy exempts applications for jobs where criminal record may be relevant, such as positions at a school or elder care.
Still, the Massachusetts policy is not without its limitations. Employers are only prohibited from asking about the criminal records of prospective employees during the "initial" application process. And there are more loopholes. As one high-powered law firm for employers has already counseled its clients,
Employers in possession of a current or prospective employee’s CORI record are still allowed to ask the subject about his or her criminal history and can decide not to hire a candidate or take adverse actions based on that person’s criminal history. Before doing either, however, the employer must give the subject a copy of his or her CORI record.
You can bet that law firm and others will continue looking for loopholes. Some of the provisions won’t take effect for another year or two, which should give them plenty of time to construct a list of complaints. As with any new law, implementation will be key. Stay tuned, as this is an area ripe for racial justice research in Massachusetts and beyond.