Should employers have the right to discriminate against job applicants who have been convicted of crimes? That's the fundamental question that both the city of San Francisco and the federal government are wrestling with as they consider whether employers should be able to take prospective workers' criminal records into account. Not surprisingly, there has been heated debate.
In San Francisco, the Reentry Council, a local governmental body that advocates on behalf of ex-prisoners, called in March for the city to amend its laws to prohibit private employers and landlords from discriminating on the basis of a person's arrest or conviction record. (The law would still allow employers to take criminal records into account when they are directly relevant: schools would not have to hire sex offenders, for instance.) (See TIME's special "Out of Work in America.")
The Reentry Council - and San Francisco's own Human Rights Commission, which has joined the call for reform - acted because it has become increasingly difficult for ex-inmates to find work. In the current job market, employers can afford to be highly selective, and any brush with the law - no matter how small or how long ago - can be a disqualifier. That rules out a lot of people: about 1 in 4 adults in California and the U.S. has an arrest or conviction that shows up on a criminal-background check.
Adding to the problem is that employers are far more likely to do criminal-background checks than they once were. According to the Society for Human Resource Management, 92% of employers did some kind of pre-employment background check in 2010, up from just 51% in 1996.
It is not surprising that San Francisco would be worried about its ex-offender population. San Francisco was early to recognize the rights of gay people, and it has passed a law making it illegal for employers to discriminate on the basis of height or weight. "San Franciscans are finding ourselves at a familiar moment, looking at a population differently than other people do," says Jessica Flintoft, re-entry policy director of both the Reentry Council and the public defender's office. (Read about why the mentally ill are still bearing arms.)
What is perhaps more surprising is that San Francisco is actually not in the lead on protecting ex-offenders. Some states, including Hawaii and Massachusetts, already have protections for former inmates (or anyone with an arrest record) applying for jobs, as do cities across the country, from Battle Creek, Mich., to Jacksonville, Fla. San Francisco is still drawing up a draft bill and having public hearings; it is not clear when it might actually adopt a law.
Even though San Francisco would not be first, its decision to consider making ex-prisoners a protected class has been causing controversy and raising hackles among many conservatives. Fox News recently announced that the proposal was sparking "outrage" and declared that critics were calling the idea "a crime in itself."
The idea of extending protection to ex-offenders, however, also has some law-and-order backers, including San Francisco District Attorney George GascOn, the former chief of police. GascOn insists that helping ex-prisoners get jobs and leave their lives of crime behind them makes the city safer. "These people are in the community regardless," he says. "Do we want to marginalize them and keep them on the edge?"
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While San Francisco has been debating the issue, the federal Equal Employment Opportunity Commission (EEOC) held a hearing in Washington, D.C., last week on the question of whether employers are allowed under existing federal law to consider job applicants' criminal histories.
The EEOC says the use of criminal records in employment matters can constitute racial discrimination since minorities are more likely than whites to have been arrested. The commission has long-standing guidelines saying that employers must take into account the age, seriousness and relevance of a person's criminal record before they consider it in a hiring decision. (See a brief history of intolerance in America.)
Discrimination law raises difficult questions because it forces us to think about what kind of distinctions society should allow. Race, religion, national origin, sex and disability are easy: most Americans generally agree that they do not want people to be discriminated against on those bases.
But other issues are not as clear-cut. Is San Francisco right to bar employers from discriminating on the basis of weight? Is New Jersey right to make it illegal to run a help-wanted ad saying that unemployed people will not be hired? (Reports of growing numbers of employers refusing to consider job applicants who are currently unemployed make it even harder for ex-convicts to find work.) There might be rational reasons for taking those factors into account. Employed people may be more skilled on average than the jobless, and tall people may be better at reaching the top shelves. But discrimination law is about what kind of a society we want - and many of us do not want one in which short people or people who have been laid off cannot get a fair shake.
In the case of former convicts, employers may think they have good reasons for favoring people with clean records. They may believe that people who have never been arrested before are more likely to obey the law and less likely to be dangerous. (Read about why hiring may be helped by background checks.)
The problem is, if everyone acts on those beliefs, we will end up with a society in which some people who have messed up even just once never get a chance to turn their lives around - and we will have a permanent class of unemployable ex-offenders who find themselves with few choices other than returning to a life of crime.
San Francisco, the EEOC and all levels of government should do what they can to reduce discrimination against people with criminal records - because it is not just better for the ex-offenders, it is better for all of us.
Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday. You can continue the discussion on TIME's Facebook page and on Twitter at @TIME.
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