Limits and Possibilities in the Struggle to Confront Criminal Record-based Discrimination

• In Event: Critical Prison Studies Caucus: Making Freedom: Materializing Abolition Through Non-Reformist Reforms

Abstract

Never before has there been greater discrimination facing people with criminal records in the labor market. Driven largely by state-sponsored statutes that require exclusion, restrictive insurance policies and the multi-billion dollar background screening industry, exclusion is unquestionably on the rise. But so are efforts to challenge stigma and exclusion. The highest profile strategies include: Ban the Box campaigns and Fair Chance Hiring initiatives organized by former prisoners and allies all over the United States; the Equal Employment Opportunity Commission’s aggressive attempts to mitigate racial impact through enforcement of Title VII of the Civil Rights Act of 1964; and the confrontation of background screening companies and employers for violations of the the Fair Credit Reporting Act (FCRA) by “second chance” attorneys.

Underneath these legal and policy battles over questions of if, when and how criminal records should be used in employment contexts lie deeper debates about their meaning, relevancy and inherent racism. This paper will explore the extent to which the aforementioned legal and political strategies inch us toward abolition of the prison industrial complex (PIC). What is required of policy and legal reforms if our goal is to not only increase employment opportunities for people with criminal records, but also in so-doing to shift consciousness and undermine (rather than extend, entrench or render more palpable) the reach of the PIC?

Ban the Box campaigns and well-publicized Title VII and FCRA lawsuits have had a tremendous effect in raising employers’ consciousness of the discrimination faced by formerly incarcerated persons, forcing them to rethink their hiring processes and question blanket exclusions. And yet because the changes employers have made are primarily motivated by a desire to steer clear of litigation, in many cases, the result is a shift in procedure around criminal records, rather than a fundamental shift in orientation. In the worst case scenarios, despite increased “fairness” and transparency in the hiring process, little changes with regard to ultimate hiring decisions.

In order to think through the limits and possibilities of current strategies in the movement to challenge criminal record based employment discrimination, this paper draws from 12 months of recent ethnographic research with employers, job seekers and advocates in southern California’s Inland Empire, as well as my longer term work in the region as an anti-PIC and reentry organizer.

Author

• Melissa Burch, University of Texas, Austin (TX)