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The Fair Criminal Record Screening Amendment Act of 2014, known as “Ban the Box,” prohibits employers from requiring job applicants to disclose their criminal background or asking for their permission to conduct a background check before making a job offer.
But if the experience of returning citizen Chris Cole is any indication, the D.C. Office of Human Rights, which regulates the Act, is having trouble changing the behavior of companies that violate the law, and is also, for administrative reasons, brushing aside claims that may have merit.
Loose Lips has written about Cole’s experience as a returning citizen who has been out of work since 2015. During that time, Cole has become a lay expert on how to apply the law. He has filed about 400 complaints with OHR alleging violations of the Act and settled roughly 20 of them through mediation.
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On October 21, Cole contacted OHR and inquired about the status of some 200 claims he filed between September 2016 and January 2017 that have not been processed for intake. (In a claim he filed against Hooters in early 2016, for example, Cole says the office has yet to make contact with the restaurant.) Within a matter of days, OHR exercised statutory discretion and dismissed more than 160 of Cole’s claims from November and December of 2016 and January 2017 out of “administrative convenience,” according to OHR correspondence reviewed by LL.
Stephanie Franklin, OHR’s director of policy and communications, says the office’s caseload has increased significantly in recent years and that volume attributed to one individual “can have negative impacts on the management of resources and the careful processing of all claims filed in our office.” Cole says that in 2015, former OHR investigator Brian Ferguson, now Director of the Mayor’s Office on Returning Citizen Affairs, told him there was no limit on the number of claims a person can file. Since the mass dismissal of claims he has filed, Cole has submitted 50 of them for re-consideration.
Cole tells LL that filing numerous claims does nothing to help him get back into the workforce, which is his ultimate goal. Since serving out his last criminal sentence a decade ago, he has had jobs providing legislative support to a labor union, teaching classes on life skills and job placement to other returning citizens, and serving as a human resources manager.
He says he cannot move forward with his life on the small payouts he wins from settling discrimination claims. If anything, his barrage of claims is intended to make a point and expose the need for reform. He has taught others how to file claims and testified before the D.C. Council, and has little to show for his time and efforts. He thinks the law is poorly conceived and inadequately enforced, and that OHR is under-staffed and dysfunctional.
“I know what I do,” he says. “I’m a critical thinker. I know there are consequences that could be perceived as negative.” There’s also a survival aspect to his actions, he says. “I want a job. I don’t want to sit around getting bored. I got no credit. I can have [a couple thousand dollars] in a bank account, but it goes out piece by piece by piece. At the end of the day that don’t mean [anything].”
Of even greater concern, from LL’s perspective, is that companies seem disinclined to do anything about their employment practices, choosing instead to settle claims like Coles’ for nuisance value. Forget the Hewlett-Packards and IBMs that Cole has applied to; companies like Hair Cuttery, Macy’s, Johnny Rocket’s, Matchbox, Uno Pizzeria and Walgreens have job applications susceptible to challenge as well, Cole says.
So what if Cole’s complaints are dismissed, and such companies can avoid any challenge at all to their practices? Again, Franklin emphasizes that each case requires resources to vet, investigate, and mediate, suggesting that clogging the system with claims does a disservice to other claimants, who already experience backlogs as it is.
Asked to what degree OHR investigates claims that are dismissed for administrative reasons without regard to merit, she says, “Though large volumes of cases at one time can exhaust resources, it can also demonstrate a greater systemic issue with which OHR has the authority to investigate on its own—absent an aggrieved individual. The OHR Director reserves the right to investigate individual instances or patterns of alleged discriminatory conduct and may initiate complaints in connection with the investigation. This type of investigation is known as a Director’s Inquiry. Director’s Inquiries can result in penalties and other remedies, similar to an individual complaint, if a violation is found. OHR has undertaken these sorts of inquiries in the past when it has become aware of conduct believed to be prohibited by the laws we enforce, and will continue to do so when the Director has reason to believe that prohibited conduct is occurring.”
OHR did not provide data to illustrate how many “Directors’ Inquiries” it has initiated since passage of the Act, nor how many of them resulted in a finding of discrimination and a bona fide change in the company’s hiring policy. Which leaves open the question: Just how hard is OHR making life for companies that discriminate against returning citizens?