Wednesday, October 26, 2011

"Compassion" for felons may have been misdirected.

Wisconsin is one of a relatively small number of states which restrict consideration of past felony convictions in employment decisions. Put simply, such consideration is forbidden unless the conviction was for a crime substantially related to the circumstances of the job in question.

A bill pending in the Assembly would bring the law here back into line with the law in the overwhelming majority of states and allow employers to consider past felony convictions whether or not related to the circumstances of the job in question.

Eugene Kane is, there's no way around it, playing the race card and sharing Rep. Barbara Toles (D-Milwaukee) assessment that this will be "bad for the community." To be sure, Kane won't directly accuse the bill's sponsors of racism. No, he would never do that but the bill does make it "hard to convince some people - particularly African-Americans - the new GOP-run Legislature isn't filled with a bunch of white politicians who have no problems passing laws that negatively affect African-Americans and Latinos without any thought to the consequences." See, it's not what Gene thinks. It's those other folks.

Let's take a breath. If Wisconsin's law helped convicted felons get jobs then the state would be a Mecca for convicts. It would be a place where released prisioners find it much easier to get work, perhaps even attracting parolees from other states. It may even be that there is evidence that demonstrates this, but I don't think so.

Having practiced law for 30 years and both advised on and litigated hiring decisions, I think the best thing that you could say about existing law is that it has no impact. Anti-discrimination laws tend not to work unless and until there is a broad consensus that discrimination on a forbidden basis is, in fact, wrong. The law then brings those who do not share that consensus into compliance (although the market would do much to accomplish that even in the absence of a law).

But when people don't really believe that a form of discrimination is wrong, the law can do little to stop it. Age discrimination, for example, is illegal. Has been for years. It is also rampant because people don't think it's wrong. Whatever the merits of that belief, it is relatively easy for employers to indulge it - particularily at the hiring stage. Just about any older person who has been forced to seek a non-leadership position can confirm this.

Nor do people believe that it is wrong to take into account a person's past felony conviction regardless of it's "substantial relationship" to the job. The conviction tells them something about a person's character and decision-making. Perhaps you think that others should be untroubled by a child abuser working in a back office or a rapist manning the phones in customer service (I actually had that case) but most folks won't agree.

This isn't to say that others are unwilling to give convicted felons a second chance but this is where the perfidious nature of current law comes into play.

It may well hurt the job prospects of convicted felons.

How can that be? Consider this. Providing a convicted felon with a second chance is almost always going to be a risky proposition. It is going to require that the employer live with a higher than normal chance of a bad outcome. If the employer can rectify a mistaken decision to provide that second chance, i.e., by firing the person in question if things go badly, the chance may still be worth taking.

But if the law makes that convicted individual part of a protected class, the cost of taking a risk that doesn't pan out becomes higher. Now the employer can fire someone who hasn't worked out at the price of having to convince someone else that it wasn't done "because of" that person's membership in the protected class (i.e., convicted felons). At best, this will entail additional costs and, at worst, the employer runs the risk that his or her judgment will be second guessed.

Under those circumstances, perfectly rational and good hearted people will be (quite rightly) more reluctant to provide risky persons with a second chance. It is much easier to find a reason to avoid hiring them in the first place than it is to assume the risk of having to justify firing them to people who were not there, who don't understand the employer's business and who may be pre-disposed to find against them.

1 comment:

Tom said...

There are a lot of lies going around about this bill. There was a press release yesterday, I can't remember if it was from DPW or a Democratic politician, that claimed that this bill would "prevent" felons from getting jobs.

I've talked to three separate, unrelated people who thought that the bill actually meant that it would be illegal to hire a felon, or something similar. After explaining what the bill would really do, they all agreed with it.