Wednesday, January 4, 2012

America's Newest Protected Class -- Felons!

Your Wizard doesn't usually have a crystal ball, but he may have accidentally careened into the future over a year ago when he wrote about growing efforts to give special status to felons.  At that time, there were signs that in elections, the census, and the workplace that felons were going to get special status, on the theory that, since minorities commit felonies in greater proportion than white people, to discriminate against felons is nothing more than thinly veiled racial discrimination.

These signs are now coalescing into a full-fledged attempt to elevate felons into America's newest protected class.  Massachusetts now prohibits employers from asking about criminal records on initial employment applications, except under certain limited circumstances.  The city of Cleveland will no longer ask applicants whether they have ever been convicted of felonies.

In fact, over 30 cities, including Detroit and Kalamazoo here in the Enchanted Mitten, have joined the "ban the box" (BTB) movement to prohibit any job application questions about a prospective employee's criminal history.  Litigation is pending in Illinois, New York, Pennsylvania, and California, designed to hold employers responsible for discrimination because they asked for criminal histories on their job applications.

The professed theory behind BTB is that by removing criminal history as an automatic disqualifier at the outset, more felons will be able to get deeper into the application process and be judged on their positive qualities, not just on their criminal records.  This is obviously based on the premise that, for many jobs, a felony history is irrelevant and should not disqualify the applicant,

The BTB theory falls apart, however, when one looks at the later stages of this new employment process.

Let's take a look at Detroit's approach.  Section 13-1-12 of the City Code provides:
Except as provided for in section 13-114 of this Code, the City of Detroit shall not inquire into or consider the criminal conviction of an applicant for employment with the City of Detroit until the applicant is being interviewed or is otherwise qualified for employment by the City.
In other words, don't ask until later.

This approach comes completely asunder with subparagraph 2 of Section 13-1-14:
This division does not limit the right of the City:
(2) To otherwise take into consideration during the hiring process a potential employee's criminal conviction[.]
So, you can't ask about a criminal conviction on the application, but you can take it into consideration any other time you feel like it.

What kind of protection is that?

Answer:  it is no protection at all, but it allows the City to say it is doing something to help felons and, more importantly, it reveals the lie inherent in the "ban the box" lunacy -- while pretending to assist felons in re-entry into the workplace and society, the code contains a loophole big enough to drive a stolen semi through.  And it's all to protect the people who really need protecting -- city employees.

Despite the hypocrisy and empty promises, it's only a matter of time before BTB-types step up the pressure and start getting real concessions from city leaders.  At some point, it will be completely illegal to inquire at any time into an applicant's criminal background and, given the growing segment of our population with felony records, our government offices will be staffed with sizable percentages of felons.

Then crime won't just be for our elected officials.  But, that's just my crystal ball talking.


  1. While I agree with the Wizard on many points here, there is still another issue to consider. As the WSJ has been pointing out in a special series over the past few months, felonies are exploding (can the jaywalking felony be far behind?). Indeed, politicans can get an easy law passed by making former non-felony crimes into felonies (you're not soft on crime, are you?). CATO has done articles on how many of us are probably (unconvicted) felons and don't even know it. Felons should not be a protected class, but if trends continue, we'll have to ask what kind of felons we're talking about. People in this country are losing their right to vote and right to defend themselves with a pistol for some very dubious reasons.

  2. Anonymous -- Very good points. The situation you describe will require potential employers to differentiate among felonies (as in, there are felonies and then there are FELONIES), but it's hard to distinguish when you're not even allowed to ask the question until well into the process, if at all.

    Thanks for reading and for commenting!

    The Wiz.

  3. Interesting... and do these laws protect employers if these felons repeat their felonies while engaged in work activities?

  4. Bruce -- That's the fascinating and, of course, contradictory part. An employer may be liable for negligent hiring, meaning that the laws are encouraging employers to hire employees who will increase their potential liability. Nice, huh?

    Thanks for reading and for commenting. More to come!

    The Wiz.

  5. Late to this discussion sorry but I have a few words on this. I am an ex-felon, ex-con whatever, I was arrested for armed robbery when I was 18, I had a bad drug problem, I did 10 and a half years! So I get out of prison, I decide I want something better with my life and I never want to go back. Everywhere I go for a job I get turned away and cannot get a job. Don't even begin to think that I am not qualified, I have more skills than most of you reading this posting. So what was I left to do, lie! I lie on my applications and I get the job by hiding my background. Friends act as previous bosses to help etc. I have now been out of prison for 7 years. 5 of those years I was Chief Building Engineer in downtown Los Angeles for a historical high rise, with a side job php web development. I also teach other programmers in a certain website for php development, I got let go as Chief Building Engineer when the company went bankrupt so I started my own remodeling company, then went on to working for someone again in maintenance field.
    I now have two children, and have done all of that since being out, I would say I am a productive member of society now! I am now 35 years old, haven't touched drugs in about 15 years, I have changed my life completely. The only bad I do is I have to lie on applications.

    Should I be persecuted forever?
    Should society forever have the right to deny jobs?

    What do you think would happen if I absolutely cannot get a job and about to be homeless with my kids because noone will hire me?

    What do you expect any ex-felon to do when they cannot be hired anywhere and work legitimately because of their past?

    The point is an ex-felon should not be left with only McDonalds type jobs because noone is willing to hire them, judgements should be based on skills and personality and work history plain and simple!

  6. It's been almost 21 years. for me and I still can't get a decent job. I have a 3 digit IQ

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  13. There are definitely some areas like healthcare that should be asking about criminal history of job applicants. This is needed for the safety of the people that would be under their care.

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