NCJ Number
218733
Journal
Georgetown Journal on Poverty Law & Policy Volume: 13 Issue: 2 Dated: Summer 2006 Pages: 283-311
Date Published
2006
Length
29 pages
Annotation
This article focuses on the implications of rational discrimination on efforts to increase employment opportunities of ex-offenders and suggests a model for reform that rethinks the dominant models of rationality and morality as they relate to the employment of ex-offenders in America.
Abstract
The main argument is that a focus on the economic and public safety benefits of proposed legal reforms concerning the employment of ex-offenders can coincide with efforts to change the image of ex-offenders from the undeserving to the competent. The national rhetoric surrounding the employment of ex-offenders should be reformed to influence public perceptions of the position of former prisoners in American communities. The author contends that the massive numbers of ex-offenders released from prison following the tide of increased incarceration need the support of society and its laws if they are to succeed. If this reform effort is to succeed on a large-scale level, there must be an emphasis within both legal reform and public campaigns regarding the reframing of employment for ex-offenders as both morally appropriate and rational for society as a whole. In making this argument, the author begins with a discussion of rationality and morality in Federal employment discrimination law, arguing that there is a general sense that laws restricting the freedom of employers to reject applicants with criminal records favor offenders over employers who are making sensible judgments based on previous bad acts. New York’s article 23A, passed in 1976, is presented as a case example of legal protections for ex-offenders. Under this law, employers may only deny an ex-offender an employment opportunity when: (1) there is a direct relationship between the past conviction and the duties of employment or (2) the applicant’s criminal history indicates that employing them would create an unreasonable risk to public safety. Despite these requirements, New York State courts have diluted Article 23A by consistently deferring to employer decisions to turn away applicants with criminal records. The author also focuses her argument on employment discrimination claims based on disparate impact on racial minorities due to employment discrimination against ex-offenders. Footnotes