TRNN Debate: Should Baltimore ‘Ban The Box’?

TRNN hosts a debate between Councilman Nick Mosby who sponsored legislation that would prevent employers from immediately disqualifying job applicants with criminal records and Elizabeth Torphy Donzella of the Maryland Chamber of Commerce.

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Story Transcript

JAISAL NOOR, TRNN PRODUCER: Welcome to The Real News Network. I’m Jaisal Noor in Baltimore.

Baltimore is poised to become the latest city to ban the box [incompr.] prevent employers for asking for criminal records on job applications. Employers will still be allowed to ask for criminal records after a conditional job offer has been made. The bill that’s received preliminary approval from the city council would apply to private employers and expand on a previous measure that applies to city and government jobs. San Francisco recently joined more than 50 other cities with similar legislation, and ten states around the country have enacted similar measures, with another 11 also having considered them. That’s according to the National Employment Law Project.

Now joining us to discuss this are two guests.

We’re joined by Councilman Nick Mosby from Baltimore’s 7th District. He sponsored the Ban the Box bill.

We’re also joined by Elizabeth Torphy-Donzella. She is a litigation partner with the management-side labor and employment firm Shawe & Rosenthal LLP and serves as the general counsel for the Maryland Chamber of Commerce.

Thank you both for joining us.

NICK MOSBY, COUNCILMAN, BALTIMORE CITY: Thanks for having me.

ELIZABETH TORPHY-DONZELLA, GENERAL COUNSEL, MARYLAND CHAMBER OF COMMERCE: Thank you.

NOOR: So, Councilman Mosby, you sponsored this bill, which is poised to be approved in the City Council. The mayor has indicated she’ll approve it. Why did you introduce this? Why did you think this was important and would benefit the City of Baltimore?

MOSBY: Well, when we talk about growing our communities and growing our city, it’s critically important that we address recidivism. In Baltimore City alone, 60 percent of folks coming out of penitentiary, Maryland state penitentiary, wind up living as–their home’s in Baltimore City. And we know that through statistics that 40 percent of those individuals within three years enter back into the criminal justice system. So it’s time that we start talking about recidivism and we talk about ways of trying to combat it, the way is providing folks with gainful employment opportunity.

Fortunately, not just in Baltimore City but all throughout this country, we’ve allowed the notion that if you are an ex-offender, then it’s somewhat more of a life sentence for certain things. One of those things is about trying to get gainful employment. So this is a fair hiring policy to allow folks the fighting chance of competing for gainful opportunities in the job market.

NOOR: And so, from what I understand, you oppose this bill. Can you respond to Councilman Mosby and talk about why you object?

TORPHY-DONZELLA: Certainly. As a lawyer who represents employers and as general counsel of the Maryland Chamber, I’m familiar with the challenges that employers face in employing individuals. You know, we also–employers have real empathy for individuals with criminal records because it is more difficult to get a job.

The problems I have with this bill are several. For one thing, it goes quite beyond what most ban the box legislation provides, and that is, in most jurisdictions that have adopted this law, it’s banned–the box, so to speak, is banned from the employment application. And the notion is that way you do not artificially screen out individuals with criminal records on the assumption that employers use it as a complete bar to employment rather than as a factor.

This bill, as Councilman Mosby will agree, goes quite beyond that and prevents the employer from asking about criminal history until a conditional job offer has been made. That means the employer’s gone through the entire recruiting process, determined that this is the applicant they’re going to choose, and at the end of that process, when all other applicants have been discarded, may learn that the individual has an employment-disqualifying conviction. And I think Councilman Mosby will agree there are some convictions that are employment-disqualifying. Someone who’s embezzled money is not going to be hired by a bank. So it’s just quite late in the process to impose this upon the employer.

Rather, if you’re going to have this sort of legislation, the time to be able to ask it is after you’ve had that initial interview, so that you can make a determination whether or not this person really is suitable for the job.

NOOR: And from my understanding, the bill does have some amendments or some parts of it that specify certain jobs that certain offenders cannot qualify for. Is that correct?

MOSBY: Correct. So we were able to add in some amendments to ensure that minors nor adults of vulnerable populations, you know, unable to, you know, take care of themselves, and elderly–if you are a facility or have operations that directly deal with those two populations, you will be not included in the bill.

Another amendment that’s going in regarding jobs that are disqualified from federal, state, or local laws will also be excluded from the bill. So we tried to approach it from the standpoint of if there is a requirement associated with the qualifications of obtaining that job, that your past conviction disbars you from participating or being actively involved in that particular work function, then you would not be held to wait late into the process, that you would be able to find that information out right at the beginning.

And the reason, once again, is I know that by removing the box off of an initial application does remove that artificial vetting-out process of if someone checks, yes, their application goes in the trash and all the nos we’re going to look over.

However, that does not take the implicit biased nature of the hiring manager when they’re sitting and looking at someone. If they have ten folks in front of them that have gone through the application process, three have criminal convictions, the other seven, how can we ensure, because we know that fair hiring practice hasn’t been upheld by, you know, many employers, how can we ensure that there is not any implicit bias associated with the way the hiring manager is going to hire those individuals?

NOOR: And what about the argument that this poses an unfair burden to employers?

MOSBY: I would say that we’ve been posing unfair burden to our citizens, once again, providing folks with basically a life sentence for past transgressions that they can’t correct. I mean, sometimes we’re not talking about something that happened last year. Sometimes folks have to say, yes, I had a crime and I committed it five or ten or 15 or 20 years ago. I mean, at the end of the day, if folks have been able to be law-abiding citizens in our community after they’ve served their time, after they’ve done exactly what they’ve had to do, you know, they should be able to be judged just based off the qualifications that they bring to the table for a job, and have objective comparison to any other applicant, as opposed to being discriminated against because of implicit biases.

NOOR: And how would you respond to that? Because something that’s been discussed in the news and in the General Assembly now–and, you know, several states have also legalized now, which is marijuana possession. And according to a recent report by the ACLU, Maryland is fourth in the nation at the arrests for marijuana, and Baltimore is the leader in marijuana arrests in the entire state. It’s 11.4 people per thousand, which is a really high number. And that’s something that’ll show up on a background record. What’s your response?

TORPHY-DONZELLA: Well, sure. Any criminal conviction, unless the shielding laws that are pending for the General Assembly–will show up on a record. But I will tell you that thoughtful employers do not use criminal history as an absolute bar to employment. Most companies do not use it as a throw-the-application-into-the-trash sort of endeavor. And, in fact, most applications will tell the individual it will not be employment-disqualifying if you have a conviction. Employers consider the age of the conviction, the nature of the conviction, the job relationship to the conviction. And, frankly, they’re unwise if they don’t take those factors into consideration, because the EEOC, the Equal Employment Opportunity Commission, is keenly interested in the disparate impact of convictions on the employability of African Americans and Hispanics from a disparate-impact perspective.

So, I mean, I deal with employers every day, and I can tell you–employers within Baltimore City–and I get calls, and it’s not because somebody is trying to disqualify someone. Someone’s trying to determine: is this going to pose an issue in my workplace? If this person turns out to not fulfill their duties properly and injure someone, will I be considered to have negligently retained or hired the individual and be sued because someone was harmed? So employers really have to be thoughtful at both ends of the spectrum.

NOOR: And what’s your response to that?

MOSBY: Whether we have a box or we don’t, whether this legislation pass or it doesn’t–I believe it will pass–employers are still held responsible. But employers under this law still have the ability of knowing exactly who they’re deciding to hire. What this does do, once again, is takes away the implicit biases of a individual who’s the hiring manager to determine if this person gets the job. If I take two people with the same characteristics, with the same background, with the same educational attainment, everything is the same with the exception that one has a conviction and the other person does not, I am positive that in more cases than not, the individual without the conviction gets the job. It has nothing to do with their interpersonal skills or their interviewing skills. It’s just another factor. If it’s not a factor that’s used to hire, we do not need it during the hiring process. That’s the point of the bill.

TORPHY-DONZELLA: But I guess I have to ask you: what of the difficulty of the employer going through the entire recruitment process, winnowing down to a particular candidate, and learning that the candidate has a legitimately job-disqualifying conviction? I mean, there is a cost associated with that recruiting process.

MOSBY: And I would agree that if you talk to most employers today, unfortunately, they still have to go through that, because a lot of people, because of this byproduct of this biased system, will lie on their initial application. So they’ll say that, no, I don’t have a past conviction, or they’ll say, yes, I have a past conviction and it’s just this misdemeanor or it’s just this crime that took place 15 years ago, they go through the entire process, and in certain cases they start working, and then within a matter of a month or two months after the background process is completed and all the HR policy stuff is done for that particular company, that individual is fired.

So I think companies have to go through it now because a byproduct of folks having the door shut on them so much because they never get the real opportunity of interviewing and having a shot at this gainful employment. So I think the problem still persists today because folks lie about it.

TORPHY-DONZELLA: Well, if they do, they do get fired, you’re right, not for the conviction, but for lying. But I have to tell you, I’ve seen enough applications where people do disclose their history and they’re hired. You know.

MOSBY: Yes.

TORPHY-DONZELLA: So it’s just a real cost. And I really fear that Baltimore City is going to become a less attractive place for employers because the cost of this restriction and the potential liability in the event of a misstep with lawsuits and damages is going to be a deterrent. And that doesn’t do anything for the employment levels in Baltimore City.

MOSBY: I don’t understand the lawsuit or damage part of it, because, again, this legislation does not exclude an employer from knowing the background history of an individual that they hire. The only thing it does is delays it after the selection process is completed.

NOOR: Now, isn’t it possible just to go online and pay $20 to do a background check? Aren’t criminal records public record?

MOSBY: It’s cheaper than that. It’s also–it’s free.

TORPHY-DONZELLA: It’s free.

NOOR: So this isn’t going to prevent an employer from doing that.

MOSBY: This doesn’t prevent an employer from going in some dark black room and jumping on a computer–.

TORPHY-DONZELLA: And violating the law.

MOSBY: And violating the law. Yeah.

TORPHY-DONZELLA: And then you’ll have a lawsuit. I mean, no employer in his right mind would do what you’re saying, because that would be illegal, and then you would be violating the law. Employers do not want to violate the law. So that’s why it is important to be thoughtful about the law. You don’t want to create a situation–.

NOOR: I didn’t realize that was the law.

TORPHY-DONZELLA: Yeah. I mean, you don’t want to create a situation where you have people flouting the law or skirting the law. Certainly, the councilman wouldn’t want to do that. I know that.

MOSBY: No. And I think, if someone has the right to go online and search your background, that there should be some type of notification process for you to know that. I mean, I think that’s something that we have to continually work on. But that’s one way around, you know, folks just being able to go and try to skirt around the law.

NOOR: And also, as we–.

TORPHY-DONZELLA: Don’t do that. Not a good idea.

NOOR: Yeah. We’re not suggesting that anyone do that.

TORPHY-DONZELLA: Right.

NOOR: But as we mentioned in the beginning, so more than 50 cities and ten states now have adopted ban the box. Maryland might become the latest. Is there any evidence this increases crime or any evidence of the cities that have already passed it that it’s caused problems for employers or that businesses have left those cities or states?

TORPHY-DONZELLA: Well, they’re different bills, as I told you. They are not bills that prevent an employer from considering the conviction until the very end of the process. They’re bills that say–often say you can’t ask about it until the initial interview, or you can ask about it in the interview. We just don’t want you to use it as an artificial screening device. This is quite different.

MOSBY: This is definitely more progressive than most of the bills. But once again, I mean, we can develop a bill that just sugarcoats the issue and say we’re going to remove it from the application. My issue is, at the hiring manager perspective when not after the slate is selected, after individuals are selected, how do we assure that we are removing the discrimination and biases associated with folks with past convictions? And the only way of doing that is not leveraging that as a tool for someone to use during the hiring process.

I mean, I think that we can talk about at the end of the day there’s unconscious thoughts and actions that we have in our mind when we see something. If I have an application that is very comparable, objectively, as it relates to someone’s background, the only difference on there is a past conviction, and it’s a person without a past conviction, I believe that there are going to be some impartial bias associated with it. And that’s just a very nice way to put it.

I think there are more flagrant cases. I think you get ten applications in front of you, three have past convictions, you start to potentially focus only on the seven. I that there are studies out there. I think there can be studies out there to kind of prove this type of unconscious thought process that we all have in our mind as it relates to folks with past convictions. And the one thing I will say that we know that through past studies and empirical data: that it’s tough for individuals to find jobs and find employment when they have past convictions.

TORPHY-DONZELLA: Yeah. I mean, you’re operating under a template of an employer who will consciously or unconsciously exclude the individual with a conviction over someone without one. I will tell you, in my practice I see plenty of companies that call me with individuals they are considering hiring and just looking through: is this something that needs to be screened or not?

And, frankly, you know, the employers in Baltimore City are aware of this problem, and the good employers are not doing what you’re talking about. You know, to say we’re going to attack unconscious bias by erecting these barriers, I don’t know how valid that is, because, you know, you don’t have a measurable bias. You have your opinion about what biases are, but I don’t share your opinion, and I don’t think we legislate by assumptions about bias.

MOSBY: So it’s not based off assumptions. It’s based off of real hard facts and statistics.

TORPHY-DONZELLA: Well, there I agree.

MOSBY: We know that it’s tough, once again, when you take a population of individuals, you take a population of those individuals with the same type of educational attainment, the same type of work experience, it’s tougher for the folks with criminal convictions to get a job than it is for the folks who aren’t. Then, when you break it down further in demographics, when you look at by race and we look at individuals who have criminal convictions of certain races, it’s harder for certain races to also get those jobs. So we know that there’s this level of biasness associated with the hiring process. And I believe that process–I believe that bias is not explicit, but it’s more implicit, and that in order to do that, you have to remove that level of scalability away from that whole application process. There’s no other way. I mean, it’s not explicit, it’s not explicit to the point where I’m saying, okay, well, I’m going to remove these three over because they have past convictions, ’cause at the end of the day, maybe I’m not focusing on these three, I’m just focusing on these seven. And I think the way that you say that it is a fact or that there are empirical data out there that kind of suggest to that, it’s the fact that it’s tougher for individuals with past convictions to get employment.

TORPHY-DONZELLA: Well, the EEOC of course recognizes or believes in the theory of disparate impact.

MOSBY: And why is that, though?

TORPHY-DONZELLA: Well–and they have to prove it through statistical evidence. But when there is, it’s a statistically significant difference in the hiring of individuals, in screening of individuals based upon race and national original. And it correlates with the conviction record.

MOSBY: And what is that based off of?

TORPHY-DONZELLA: Well, it’s based upon–and to your point, disparate impact is a facially neutral policy that has a discriminatory impact regardless of intent.

MOSBY: Correct. Correct.

TORPHY-DONZELLA: So I understand what you’re saying.

But the EEOC doesn’t say, you cannot consider the conviction. They say, you need to consider the nature of the conviction, the nature of the job, and the recency of the conviction. They don’t have an on/off switch either.

MOSBY: And the employer is still allowed to do that prior to the person coming to work and working. It just happens after the whole hiring process takes place.

NOOR: Now just a final thought, or point, maybe, to end on, and you’re both free to disagree with this, but isn’t the larger issue at hand here sort of the inherent nature of the war on drugs, where you have massive amounts of African-American people targeted for low-level pot offenses and for other crimes, and that have these criminal records that are with them for their entire lives. That’s disqualifying a huge part of the population from getting employment.

MOSBY: It’s become a trendy thing to be very familiar and be able to quote Michelle Alexander’s book. But yes. I mean, that’s something that we’ve always known in our community. That’s something that we see not only through practical experience, but theory and real statistics and real life experiences. So, yes. I mean, I think that that is root of a lot of the problems, the systemic issues that plague our communities, specifically our inner cities. And once again, this is not a Baltimore City thing. This is a national thing.

And, you know, when I look at progressive policies like this at ban the box, I know that folks are uncomfortable and folks feel like it will have negative impact or unintended consequences on certain thigs. But at the end of the day there’s been so much–there’s been so much applied and pressed to these communities that we talk about growing, that we talk about we want economic development, that we talk about wanting to be stronger and better communities, that it’s progressive policies like this are the only way to try to achieve that in my opinion.

NOOR: I gave Councilman Mosby the first word, and I’ll give you the last.

TORPHY-DONZELLA: If there is a bias against individuals with convictions for drug offenses, as Councilman Mosby said, it can be effected at the end of the process. If individuals affirmatively do not want to hire drug abusers, that can still happen under this bill. It’s just going to happen after an extended process has taken place to determine whether or not to offer the person the job.

You know, I agree there is a huge problem with individuals who have conviction records having difficulty securing employment. I just don’t [think] this is the way to go about attacking it. And I don’t think it’s going to be good for Baltimore City. This is the city where my law firm has been since 1947. We have a commitment to the city. We’ve seen the number of jobs and industries go away. I don’t want to further that process by passing legislation that deters businesses from locating here.

MOSBY: And if I could give one final statement, I mean, specifically to the business community, we know that this has been the elephant sitting in the room as it relates to Baltimore City citizens unable to attain some of the jobs that we create and the jobs that we have and the companies that are around. You know, from a business perspective, from HR policy’s perspective, how can we draw the more perfect system to allow these folks the opportunity to, after they’ve served their time, not have this life sentence placed over their head as it relates to not just getting janitorial jobs or jobs in the back of someone’s kitchen, but actual real jobs that could provide real resources to their families and their communities? That’s what I’m interested in talking about.

And I’m interested in talking to the business world to see what could they do beside ban the box, what are the real alternatives to ensure that folks have real opportunities to gain. And the last thing is: when we look at ex-offenders, they’re the individuals that have gotten talk. You know, I sat into a room of, you know, 20 or 30 businessmen, and I said, you know, I realize that, you know, you guys have never done anything illegal in your life–oh, no, you’ve never gotten caught. Right? So that’s really the difference of what we’re talking about here.

And, unfortunately, specifically for young men, once they get caught up in the system at age 18 or 19, this baggage is put over their backs, over their heads for the rest of their life. And I believe it further exacerbates the safety and crime elements that we have in our communities.

NOOR: Any final thoughts? Or leave it there?

TORPHY-DONZELLA: Well, I respect Councilman Mosby for tackling a difficult issue. I don’t agree with the way he’s going about it, but I do not in any respect doubt his intentions. And he’s a public servant who I respect.

NOOR: Well, I want to thank you both for joining us. It was a very lively and interesting discussion.

Elizabeth Torphy-Donzella, she is general counsel for the Maryland Chamber of Commerce.

Also Councilman Nick Mosby–represents Baltimore’s–City’s 7th District, and he sponsored the ban the box bill in Baltimore.

Thank you both.

TORPHY-DONZELLA: Thank you.

MOSBY: Thank you so much.

NOOR: Thank you for joining us at The Real News Network. You can follow us @therealnews on twitter. Tweet me questions and comments @jaisalnoor.

Thank you so much for joining us.

End

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