In 2016 and 2017, Colorado’s Legislature took up the question of whether to prohibit employers from asking job applicants up-front about their criminal records. Both times, committees in the Republican-controlled Senate rejected the idea.
But it’s a new day at the Capitol, with Democrats having seized control of the Senate in November while maintaining a majority in the House. And on the opening day of this year’s legislative session, Democratic Reps. Leslie Herod and Jovan Melton filed a bill to restrict how and when public- and private-sector employers can inquire about applicants’ criminal histories.
Such restrictions already exist in 11 states, and the Herod/Melton bill mirrors those states’ actions, which are parts of a movement commonly referred to as “Ban the Box” – as in, the little box on job applications where one might put a check mark to indicate they’ve got a criminal record.
“The data is there, showing that when you give someone an opportunity to have a face-to-face conversation with an employer, to get out of that application process, they’re more likely to get that job,” said Herod, who represents northeast Denver.
“All we’re trying to do is ensure that people aren’t automatically screened out for a mistake they made in their past and that they’ve paid their time for. This will allow them to sit next to an employer one-on-one and say, ‘Here’s what I did in my past, here’s who I am now and here’s how I plan to move forward.’ Ban the Box will give them that opportunity.”
If passed, the bill would also ban employers from advertising that people with criminal records can’t apply for open positions. (They’d be excluded in cases where law prohibits employment of individuals with certain records; Ban the Box would not, for example, let a child sex offender apply to be a school teacher.)
These rules are already in place for government employers in Colorado and 32 other states. But as of 2016, there were about 1.8 million Coloradans with criminal records, according to a Department of Justice Survey, and having to check that little box on job applications can often effectively disqualify them for contention.
“For many of these people, “involvement with the justice system has led to perpetual unemployment and income instability for themselves and their families,” argued the Colorado Center on Law and Policy in a memo advocating for Ban the Box.
CCLP and other bill supporters say it’s much more effective to advocate for oneself in person than it is through a form or an email.
“In this day and age, so many job applications are online, and when someone clicks the box indicating they have a criminal history, many of these are automatically axed,” said CCLP attorney Jack Regenbogen, who’s worked on the issue since Colorado first debated it at the legislature. “People get screened out without ever getting a foot in the door.”
In the past in Colorado, even some of those people sympathetic to the notion that people with criminal histories deserve job opportunities have been uncomfortable with Ban the Box on a philosophical level.
The day the bill died in 2016, State Sen. Owen Hill, a Republican from Colorado Springs, summed up the opposition: “For the government to go out and tell private employers what to do violates the role of what the government is. I think there are many other things we should be working on. But the government telling private employers what they can and can’t do is not the solution.”
It’s not just Republican lawmakers who feel that way; the Colorado Chamber of Commerce has opposed Ban the Box, too, on similar grounds.
Other skeptics include anti-racism advocates who might seem like obvious supporters, but who harbor concerns about the effort’s side effects. A 2017 study from researchers at Rutgers University and the University of Michigan – it involved sending out 15,000 fake job applications to employers in New York and New Jersey, both before and after Ban the Box policies were implemented – found that these policies sometimes have the counterintuitive effect of increasing discrimination by employers.
“Before (Ban the Box), white applicants to employers with the box received 7 percent more callbacks than similar black applicants, but (Ban the Box) increased this gap to 43 percent,” the researchers wrote. “We believe that the best interpretation of these results is that employers are relying on exaggerated impressions of real-world racial differences in felony conviction rates.”
Some Colorado supporters of the bill acknowledge that the 2017 study and others like it have unearthed troubling numbers. But, they argue, those findings shouldn’t be deterrents for legislators considering Ban the Box bills.
“I think that the main problem raised by these studies is not Ban the Box,” Regenbogen said, “but rather that there’s systemic racism in the hiring process, which can manifest as racial profiling of people of color as criminals. The reality is that Ban the Box is working, and it increases employment opportunities for people with records and changes employer attitudes.”
Studies around the country have shown that removing employers’ option of screening up-front for criminal backgrounds does improve job prospects for people with records, and does alter attitudes.
One study by the Equal Opportunity Employment Commission tested pairs of individuals with similar resumes except that one in the pair would have a criminal record and the other would not. Having the opportunity to move beyond the initial application stage and meet face-to-face with employers was found to improve prospects for the job applicants with criminal records by 15 percent.
Herod makes the case that her bill not only seeks to resolve an problem of equity, but is also a workforce issue, given that former criminals with steady employment are consistently shown to be less likely to break the law again or face housing crises.
“If they have good employment, it’s a key factor,” she said. “We want people to have real jobs once they get back into society.”