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Alma Cureton was dismayed when teenagers she had been mentoring told her they were afraid to seek employment because they had arrest records. Job applications, they told the 66-year-old former teacher, often asked them to agree to a background check to be considered for a position.
In 2015, Cureton attended a D.C. Council hearing on the Fair Criminal Record Screening Amendment Act of 2014, known as “Ban the Box,” and heard stories of people being bumped off websites for declining to answer questions such as, “Have you ever been arrested,” before they could complete their online job applications. “Well, I was able to see the problem right there,” she says.
Cureton decided to investigate further to find out what her mentees were experiencing. She applied to businesses such as Verizon, Comcast, and Wendy’s for basic clerical and receptionist jobs. When she encountered applications that she thought violated the Ban the Box law, she filed a complaint with the D.C. Office of Human Rights.
Ban the Box prohibits employers from requiring applicants to disclose their criminal background or asking them to give permission to an employer, or third party, to conduct a background check before extending an offer of employment. “I thought, it’s great that the Council had it in mind to help these youth who were trying to come back after being arrested,” she says.
In some cases, however, Cureton, who has filed 15 complaints since 2015, didn’t hear back from the office for a year. In others, the office said they had no record of her complaint, or it dismissed her claims for technical reasons that could have been avoided with some guidance.
Her experience with the bureaucracy has been frustrating, but a deeper problem exists: The system is bogged down with claims like hers because it doesn’t track recalcitrant businesses that refuse to change their ways. This same system allows applicants to file unlimited complaints.
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The Office of Human Rights says its overall caseload has doubled since the Ban the Box law was enacted in December 2014—though that also includes cases under the Human Rights Act and other laws under its enforcement. In fiscal year 2016, the office received 711 Ban the Box complaint inquiries, and docketed 362 cases alleging violations of the act, according to an annual report to the Council. Most of those alleged that an employer asked about criminal backgrounds on the job application form.
In September, the office boasted “the largest case processing uptick in the agency’s history.” It attributed the shift to the “widespread popularity of the Fair Criminal Record Screening Amendment Act … and extensive outreach to multiple stakeholders.” About half of filed claims are settled, according to an OHR spokesperson. The rest get assigned to an investigator to find probable cause of a human rights violation, which can result in fines of up to $5,000. Total fines and settlements attributable to Ban the Box complaints are not easily calculated, however, because those figures are lumped in with other employment-related human rights claims. (Fine collections are split between the city and the claimant.)
Determining the law’s impact on business behavior is equally challenging. According to the spokesperson, OHR does not conduct compliance checks and does not keep a database of repeat corporate offenders. It only tracks information on companies accused of discrimination that demonstrate a revised job application process. “If they don’t comply and people keep filing complaints then it will keep coming out of their pockets,” says Stephanie Franklin, director of policy and communications. “We can legislate behavior only so much. Unfortunately our hands are tied in terms of enforcement. That’s a limitation.”
Chris Cole knows that all too well. He says that in 2015, former OHR investigator Brian Ferguson, now Director of the Mayor’s Office on Returning Citizen Affairs, told him that there was no limit on the number of claims a person can file. Since then, Cole, an ex-offender with consulting and managerial experience, has filed some 400 claims and become an expert. In fact, he is the one who introduced Cureton to the OHR complaint process. He says Ban the Box has allowed companies to keep ex-offenders off their payroll, even if it means paying marginal fines and settlements from time to time.
Loose Lips went through the online job application process for several companies against which either Cole or Cureton have filed claims. Verizon, for example, still has a provision that states, “We conduct background investigations and drug screens (where applicable). Is this acceptable to you?” According to Cole, such language should not be on the application. “The applicant doesn’t know where [the background checks] are applicable. The verbiage is discouraging, which is what the law is about, and answering ‘No’ may result in the application being passed over.”
Some companies get tricky, Cole says, and ask the applicant to authorize inquiries into “character,” or “general reputation,” or “mode of living.” Others, such as Gap Inc., advise job applicants that the company “will not make any inquiry or conduct any search of publicly available records or consumer reports for the purpose of obtaining a Candidate’s background information, until after a conditional offer of employment has been made and accepted.” Although the law allows employers to probe further after a “conditional offer of employment” is accepted, Cole says the mere mention of a background check on a job application is discouraging to an applicant, and therefore a possible violation.
“Today it is not what one communicates, so much as how one communicates,” he says. “This is how these companies appear to operate, understanding the need for disengaged and disenfranchised individuals to be employed. They also understand that this population does not always understand or raise their awareness in regard to semantics. This makes it that much easier to violate a person’s civil rights under [Ban the Box].”
Cole testified before the Committee on the Judiciary and Public Safety on February 23 about problems with OHR, such as what an investigations specialist described in an email to him as “scarce resources.” He considers himself a virtual consultant, but it is not city officials who are listening. “People are just learning about [Ban the Box],” he says. (At press time, Ward 6 Councilmember Charles Allen, who now chairs the judiciary committee, tells LL that he will further evaluate the system in the spring, when updated data are available for fiscal year 2017. “The application itself shouldn’t prevent someone from even getting their foot in the door,” he says.)
Cureton says she is having trouble navigating the system, but that she is not likely to stop filing claims anytime soon. “I don’t have a criminal background, but I don’t go like that,” says Cureton, who has an upcoming mediation with Four Seasons Hotel. “When I go down to OHR, they tell me they are backlogged. Yet I don’t see much activity.”
She says her experience has left her just as discouraged as her young mentees feel when they encounter a questionable job application. “I’m a Washingtonian, so I go way back,” she says. “They need to remember why they set up this system in the first place.”