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Almost 1/3 of Americans have a history of criminal justice system involvement. These tens of millions of Americans face severe disadvantages when it comes to obtaining essentials such as housing, public benefits, and employment. Over 60% of formerly incarcerated people are unemployed 1 year after release, and even those who are employed make about 40% less yearly than do people without a history of criminal justice system involvement.
While these statistics are staggering on their own, it is important to note that the heavy burden of criminal justice system involvement is not borne equally by all Americans. For example, Black men are about 6 times more likely to be incarcerated than white men, and Hispanic men are about 2.5 times more likely to be incarcerated than white men. Moreover, not only does incarceration drive poverty after release, poverty drives incarceration. Over half of people were already living in poverty before they became involved in the criminal justice system.
As of January 1, 2018, California’s Fair Chance Act offers employment-related protections for people with a history of criminal justice system involvement. Most employers in California must refrain from asking about an applicant’s history of criminal justice system involvement until they have extended a conditional offer of employment. Employers subject to the Act are not allowed to consider arrests not leading to a conviction, participation in a diversion program, or dismissed, expunged, sealed, or statutorily eradicated convictions.
Applicants still have rights even if an employer does find out about convictions it can legally consider under the Act. Employers must conduct an individualized assessment of the nature and severity of an applicant’s conviction(s), the time that has passed since the conviction(s), and the nature of the job the applicant is seeking. It is unlawful for employers to revoke an initial offer of employment based on convictions that do not have a direct and adverse relationship to the job in question. If an employer does find a direct and adverse relationship between the conviction(s) and the job after conducting an individualized assessment, the employer must give the applicant an opportunity to present evidence of rehabilitation and mitigation and must consider that information in making its final decision. In other words, employers cannot simply implement a blanket ban on people with a history of criminal justice system involvement.
California has taken a step in the right direction by affording some long overdue rights to jobseekers with a history of criminal justice system involvement. The Department of Fair Employment and Housing (DFEH) increased its enforcement efforts in late 2021, announcing a mass search online that in a single day found over 500 job applications making unlawful statements that they would not consider applicants with a history of criminal justice system involvement. The DFEH sent notices to these employers regarding their violations of the Act. DFEH Director Kevin Kish voiced his support of “‘Using technology to proactively find violations of the state’s anti-discrimination laws.’”
However, identifying employers making unlawful statements on job applications is only a small aspect, and the most straightforward aspect, of enforcement. An uphill battle remains regarding enforcing the Act against employers who claim to conduct an individualized assessment of an applicant’s conviction(s), but in reality, see a history of criminal justice system involvement and enforce an invisible blanket ban, unbeknownst to the DFEH as it conducts its mass searches of job applications with forbidden language.
If you have a history of criminal justice system involvement and have been subjected to employment discrimination on that basis and/or based your protected characteristics such as race, ethnicity, national origin, sex, gender identity, sexual orientation, religion, or disability, we invite you to call us at (415)-453-4740.
We also encourage you to explore these additional resources regarding your rights under the Fair Chance Act, and record clearance: