Introduction
Mass incarceration and overcriminalization have left 70 million people in the United States—nearly one in three adults—with arrest or conviction records.And punishment does not end with completing a sentence. People with records are subjected to lifelong penalties and discrimination in nearly every facet of life that is essential to the ability to thrive: housing, education, eligibility for social service benefits, family issues, electoral and civic participation, and critically, employment. The cumulative result of being penalized at every turn is “civic death.” Painful family separation, loss of financial stability, and exile from civic participation are just a few of the devastating consequences of mass incarceration and having a prior conviction that have reverberated within our local communities for decades.
The pervasiveness of discrimination against people with records is intertwined with the racial disparities that permeate the entire spectrum of the justice system. Men of color are more likely to be stopped by the police and more severely sentenced than their white counterparts, and women of color represent the fastest-growing segment of the incarcerated population.
In the arena of employment, biases in hiring decisions also lead to racial disparities. Among equally qualified candidates for entry-level jobs, employers are more likely to provide job callbacks to white applicants than either Latino or Black applicants even outside the context of having a prior conviction. When a stigmatizing conviction record is added into the hiring process, the racial gap widens significantly. One study comparing job callbacks for white and Black men—both applicants with records and those without records—found that the negative effect of a record was 40 percent greater for Black applicants than for their white counterparts.
These disproportionate impacts on communities of color led the U.S. Equal Employment Opportunity Commission (EEOC) to determine that the use of background checks is governed by Title VII of the Civil Rights Act of 1964, which is the nation’s foremost federal anti-discrimination employment law.
A national, bipartisan consensus is emerging that recognizes we must reverse the growth of incarceration and its lifetime of punishment. In order to expand economic opportunity and repair the social fabric of our nation, we must shift our approach to the justice system and focus on the consequences it visits upon families and communities. The philanthropic sector has an opportunity to take part in advancing a multi-faceted solution, which will be critical to helping heal the nation and advance racial equity.
One prominent solution founded on antidiscrimination principles is the ban the box movement, which seeks to reengage people with records into all aspects of civil society. In the workplace, the movement aims to prevent stereotypes from encroaching on employment decisions by focusing on an applicant’s job qualifications instead of their past mistakes. Fair-chance employment policies lift up ban the box as an initial, but critical step to opening job opportunities for people with records. In addition, when enacted as laws, these policies often incorporate federal anti-discrimination and consumer protection principles, and adopt the best practices and guidance issued by the EEOC.
Momentum for ban the box efforts is growing. As of October 2016, there were over 150 cities and counties and 24 states that embraced ban the box policies or fairchance laws—of those, nine states and over a dozen localities had provisions that applied to private sector employers. President Obama directed federal agencies to ban the box and a growing number of corporations, including Starbucks and Facebook, have adopted the policy. Since April 2016, over 200 private employers have participated in either the White House’s Fair Chance Business Pledge or the Fair Chance Higher Education Pledge. Both efforts comprise a nationwide call to action challenging leaders in education and the private sector to expand opportunity for people who have been impacted by the justice system.
All employers can play a role to promote the movement for restoration of rights, including employers in the philanthropic sector. Many foundations routinely provide funding for policy initiatives. However, it is less common for foundations to leverage their influence as leaders in the community or to publicly align their business practices with their core values and mission. In February 2016, the philanthropic network Executives’ Alliance for Boys and Men of Color sought to take action by launching the Ban the Box Philanthropy Challenge.
Embracing the Challenge, Alliance members and their allies have ensured that their own hiring policies and practices comply with the laws regulating background checks for employment. Foundations are also creatively implementing employment practices that increase the hiring of people with records and are challenging their colleagues at other foundations to do the same. Nearly 50 of the nation’s leading foundations have already joined the call to action.
This Fair-Chance Hiring Toolkit is a practical guide for the philanthropic sector to realize the promise and potential of the Ban the Box Philanthropy Challenge. Its primary goal is to provide best practices as well as strategic and tactical guidance to foundations seeking to develop or enhance a fair-chance hiring policy and achieve tangible results in the hiring of people with records. The Toolkit builds upon the expertise and work of people directly impacted by mass incarceration and structural discrimination, and is a joint project of the Executives’ Alliance, the National Employment Law Project (NELP) and the Formerly Incarcerated & Convicted People & Families Movement (FICPFM). It also incorporates the input of employment law experts, foundation professionals, and human resources directors in philanthropy.
By embracing the Ban the Box Philanthropy Challenge and taking the steps outlined in the Toolkit, foundation leaders will set the course for the foundation employer community to move past symbolic gestures and instead develop strategies designed to achieve impact. Taking these steps will build on the culture of diversity and inclusion increasingly prioritized by the foundation community.
Foundations utilizing this Toolkit will benefit by:
- Expanding the pool of applicants to include more qualified people who are skilled, dedicated, and have a desire to add value to their communities;
- Aligning foundations’ business practices with their missions and core values of promoting social justice, healthy communities, and equality;
- Understanding requirements for compliance with federal civil rights and consumer protection laws that regulate background checks for employment;
- Adopting an across-the-board approach to ensure compliance in any state or local jurisdiction, including the nine states and over a dozen cities and counties with fairchance hiring and ban the box laws that apply to private sector employers;
- Advancing a vision of diversity, equity, and inclusion that ensures foundations aim to reflect impacted communities and integrate the expertise and experiences of people with arrest and conviction histories into decision making;
- Establishing foundations as leaders on advancing job opportunities for people with records, and setting an example for their grantees;
- Shifting the public narrative of people with records away from the stereotype of the “dangerous criminal” to upholding the value of human dignity for all; and
- Going beyond compliance by supporting the reentry population with successful reintegration into their communities, thereby reducing recidivism and strengthening families.
Introduction
Mass incarceration and overcriminalization have left 70 million people in the United States—nearly one in three adults—with arrest or conviction records.And punishment does not end with completing a sentence. People with records are subjected to lifelong penalties and discrimination in nearly every facet of life that is essential to the ability to thrive: housing, education, eligibility for social service benefits, family issues, electoral and civic participation, and critically, employment. The cumulative result of being penalized at every turn is “civic death.” Painful family separation, loss of financial stability, and exile from civic participation are just a few of the devastating consequences of mass incarceration and having a prior conviction that have reverberated within our local communities for decades.
The pervasiveness of discrimination against people with records is intertwined with the racial disparities that permeate the entire spectrum of the justice system. Men of color are more likely to be stopped by the police and more severely sentenced than their white counterparts, and women of color represent the fastest-growing segment of the incarcerated population.
In the arena of employment, biases in hiring decisions also lead to racial disparities. Among equally qualified candidates for entry-level jobs, employers are more likely to provide job callbacks to white applicants than either Latino or Black applicants even outside the context of having a prior conviction. When a stigmatizing conviction record is added into the hiring process, the racial gap widens significantly. One study comparing job callbacks for white and Black men—both applicants with records and those without records—found that the negative effect of a record was 40 percent greater for Black applicants than for their white counterparts.
These disproportionate impacts on communities of color led the U.S. Equal Employment Opportunity Commission (EEOC) to determine that the use of background checks is governed by Title VII of the Civil Rights Act of 1964, which is the nation’s foremost federal anti-discrimination employment law.
A national, bipartisan consensus is emerging that recognizes we must reverse the growth of incarceration and its lifetime of punishment. In order to expand economic opportunity and repair the social fabric of our nation, we must shift our approach to the justice system and focus on the consequences it visits upon families and communities. The philanthropic sector has an opportunity to take part in advancing a multi-faceted solution, which will be critical to helping heal the nation and advance racial equity.
One prominent solution founded on antidiscrimination principles is the ban the box movement, which seeks to reengage people with records into all aspects of civil society. In the workplace, the movement aims to prevent stereotypes from encroaching on employment decisions by focusing on an applicant’s job qualifications instead of their past mistakes. Fair-chance employment policies lift up ban the box as an initial, but critical step to opening job opportunities for people with records. In addition, when enacted as laws, these policies often incorporate federal anti-discrimination and consumer protection principles, and adopt the best practices and guidance issued by the EEOC.
Momentum for ban the box efforts is growing. As of October 2016, there were over 150 cities and counties and 24 states that embraced ban the box policies or fairchance laws—of those, nine states and over a dozen localities had provisions that applied to private sector employers. President Obama directed federal agencies to ban the box and a growing number of corporations, including Starbucks and Facebook, have adopted the policy. Since April 2016, over 200 private employers have participated in either the White House’s Fair Chance Business Pledge or the Fair Chance Higher Education Pledge. Both efforts comprise a nationwide call to action challenging leaders in education and the private sector to expand opportunity for people who have been impacted by the justice system.
All employers can play a role to promote the movement for restoration of rights, including employers in the philanthropic sector. Many foundations routinely provide funding for policy initiatives. However, it is less common for foundations to leverage their influence as leaders in the community or to publicly align their business practices with their core values and mission. In February 2016, the philanthropic network Executives’ Alliance for Boys and Men of Color sought to take action by launching the Ban the Box Philanthropy Challenge.
Embracing the Challenge, Alliance members and their allies have ensured that their own hiring policies and practices comply with the laws regulating background checks for employment. Foundations are also creatively implementing employment practices that increase the hiring of people with records and are challenging their colleagues at other foundations to do the same. Nearly 50 of the nation’s leading foundations have already joined the call to action.
This Fair-Chance Hiring Toolkit is a practical guide for the philanthropic sector to realize the promise and potential of the Ban the Box Philanthropy Challenge. Its primary goal is to provide best practices as well as strategic and tactical guidance to foundations seeking to develop or enhance a fair-chance hiring policy and achieve tangible results in the hiring of people with records. The Toolkit builds upon the expertise and work of people directly impacted by mass incarceration and structural discrimination, and is a joint project of the Executives’ Alliance, the National Employment Law Project (NELP) and the Formerly Incarcerated & Convicted People & Families Movement (FICPFM). It also incorporates the input of employment law experts, foundation professionals, and human resources directors in philanthropy.
By embracing the Ban the Box Philanthropy Challenge and taking the steps outlined in the Toolkit, foundation leaders will set the course for the foundation employer community to move past symbolic gestures and instead develop strategies designed to achieve impact. Taking these steps will build on the culture of diversity and inclusion increasingly prioritized by the foundation community.
Foundations utilizing this Toolkit will benefit by:
- Expanding the pool of applicants to include more qualified people who are skilled, dedicated, and have a desire to add value to their communities;
- Aligning foundations’ business practices with their missions and core values of promoting social justice, healthy communities, and equality;
- Understanding requirements for compliance with federal civil rights and consumer protection laws that regulate background checks for employment;
- Adopting an across-the-board approach to ensure compliance in any state or local jurisdiction, including the nine states and over a dozen cities and counties with fairchance hiring and ban the box laws that apply to private sector employers;
- Advancing a vision of diversity, equity, and inclusion that ensures foundations aim to reflect impacted communities and integrate the expertise and experiences of people with arrest and conviction histories into decision making;
- Establishing foundations as leaders on advancing job opportunities for people with records, and setting an example for their grantees;
- Shifting the public narrative of people with records away from the stereotype of the “dangerous criminal” to upholding the value of human dignity for all; and
- Going beyond compliance by supporting the reentry population with successful reintegration into their communities, thereby reducing recidivism and strengthening families.
