The federal government has long been concerned about discrimination based on race, color, religion, sex, national origin, age, and disability. Although the Obama administration supports adding discrimination based on sexual orientation or gender identity to the list, they haven’t been officially added yet. Meanwhile, the administration has come to the rescue of another group that it feels is being discriminated against: convicted felons.
Late last year, Barack Obama directed the federal government’s Office of Personnel Management (OPM) to modify its hiring rules to delay inquiries into an applicant’s criminal history until later in the hiring process for federal employment. The purpose of the change is to reduce discrimination against former convicts, thus making it easier for the federal government to hire people with criminal records. Said the president,
Now, the federal government is a big employer, as you know, and like a lot of big employers, on many job applications there’s a box that asks if you have a criminal record. If you answer yes, then a lot of times you’re not getting a call back.
We’re going to do our part in changing this. The federal government, I believe, should not use criminal history to screen out applicants before we even look at their qualifications. We can’t dismiss people out of hand simply because of a mistake that they made in the past.
This “ban the box” (the box next to the question asking whether the applicant has ever been convicted of a crime) directive applies only to federal employees, not federal contractors — at least not yet.
In the past few years, “ban the box” laws applicable to private-sector employers that do business with government agencies and private-sector employers in general have been passed on the state, county, and city level. These laws require employers to remove from employment applications questions about an applicant’s having a criminal record and not to ask about an applicant’s possible criminal history until later in the hiring process. Some of them also prohibit employers from ordering a criminal-background check on job applicants until after a conditional offer of employment has been made. There is also legislation in force that restricts the types of criminal records employers can consider in making hiring decisions.
But not only is the Obama administration wanting to help convicted felons get employment, the administration also wants to help them get housing.
New guidelines recently issued by the Department of Housing and Urban Development (HUD) will make it tougher for homesellers and landlords to discriminate against applicants who have criminal records.
According to HUD,
As many as 100 million U.S. adults — or nearly one-third of the population — have a criminal record of some sort.
Since 2004, an average of over 650,000 individuals have been released annually from federal and state prisons, and over 95 percent of current inmates will be released at some point.
And since “African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population” discriminating against applicants who have a criminal record is “likely to have a disproportionate impact on minority home seekers.”
The Fair Housing Act already prohibits “discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin.” But now “policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction.”
But even “where a policy or practice excludes individuals with only certain types of convictions, a housing provider will still bear the burden of proving that any discriminatory effect caused by such policy or practice is justified.” And even though “a criminal record can constitute a legitimate, nondiscriminatory reason for a refusal to rent or other adverse action by a housing provider, a plaintiff or HUD may still prevail by showing that the criminal record was not the true reason for the adverse housing decision, and was instead a mere pretext for unlawful discrimination.”
Now, it is true that when persons are released from prison, gaining adequate employment and having access to affordable housing is crucial to successful reentry into society. It is also true that many formerly incarcerated individuals encounter significant barriers to securing employment and housing.
The case can certainly be made that just because someone has a criminal record, it doesn’t follow that he is not qualified for some particular job or wouldn’t be a good employee. And the case can also certainly be made that just because someone has a criminal record it doesn’t follow that he will be a bad tenant or not pay his rent.
That is especially true of those ensnared by drug laws. Libertarians would argue that vices are not crimes. Consequently, no one should ever have been arrested or imprisoned for the non-crime of drug possession, use, buying, selling, manufacturing, cultivating, or “trafficking,” and no one’s future options for employment and housing should be diminished on that account.
The problem is simply who decides what the consequences are of someone’s having a criminal record. Who decides whether someone should not be hired because of his criminal record? Who decides whether a landlord should rent an apartment to someone with a criminal record? Who decides whether a homeowner should rent or sell his home to someone with a criminal record? Who decides what type of crimes will exclude someone from a particular job or place to live? Who decides how recently a crime has to be committed before it excludes someone from a particular job or apartment? Who decides whether someone who has served time in prison is sufficiently rehabilitated? Who decides at what point in the employment interview or housing application process that someone’s criminal record should be disclosed? Who decides whether a criminal background check of an applicant for employment or housing is even conducted? Who decides whether the discrimination against someone with a criminal record is “reasonable” or “justifiable”?
In a free society, businesses, employers, homesellers, and landlords decide those questions, not the government. It doesn’t matter if the discrimination against convicted felons is unreasonable, unjustifiable, illogical, irrational, nonsensical, or stupid. And it doesn’t matter if the discrimination is based on stereotypes, partiality, assumptions, prejudice, bigotry, or racism.
Discrimination is not aggression. No one has the right to any particular job or place to live. To ban discrimination is to ban freedom of thought. And if a business owner cannot restrict whom he employs, and a property owner cannot restrict whom he rents or sells to, he has no property rights.
A free society must include the freedom to discriminate, not only against someone because of his criminal record, but for any reason and on any basis.