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How Employers Are Forced to Hire Murderers and Other Felons

[Originally appeared in the Wall Street Journal, "Rule of Law" column, June 18, 1997]

Viewers of Good Morning America and NBC Nightly News recently got to meet 25-year-old Hassan Smith, who wants to become a Boston cop but faces a small obstacle: Nine years ago he gunned down a young man on a Roxbury street in a gang dispute. Boston police commissioner Paul Evans vows "over my dead body" will the convicted killer get a city badge and 9-mm Glock.

But city officials may have no choice but to hire Mr. Smith, assuming he makes it past the exams. Not only does Massachusetts law appear to instruct cities to disregard juvenile records in hiring for public service jobs, but a variety of other laws make it legally hazardous for employers, public or private, to turn away job applicants with serious rap sheets.

Consider the trouble a Wisconsin nursing home ran into recently. Last October an ambulance rushed 23-year-old Melinda Belden’s newborn to the hospital after it had stopped breathing, police said, from inhaling fumes from the crack cocaine the mother had been smoking. When the Marquardt Memorial Manor in Watertown withdrew its job offer to Ms. Belden, she filed a complaint. In April the state civil rights agency found probable cause to support her claim, saying the nursing home had not done enough to establish that the pending charges of felony child endangerment were substantially related to a job at a nursing home -- helpless old people apparently being legally distinguishable in its view from helpless young people. The case was dropped when Ms. Belden failed to pursue it.

The federal Equal Employment Opportunity Commission has long considered unlawful any general employer policy of turning away persons convicted or charged with serious crimes. "Because it disproportionately excludes members of certain groups from being hired, it can be looked at as discrimination", the commission’s Kelly Goode told a Knight-Ridder reporter in 1995. Blacks and Hispanics are more likely to have records than whites.

Police forces are no exception. The police commissioner of Cambridge, Mass. made headlines a few years back by threatening to resign after City Hall leaned on him to hire eight recruits whose rap sheets sported such charges as assault and battery and receiving stolen property. "If you bypass someone for a minor criminal offense, that person can challenge you and get a restraining order, tying up the whole list," explained the city manager.

The EEOC supposedly lets employers take into account convictions that are recent, serious and "job-related". Thus it says a just-paroled embezzler needn’t be offered a bookkeeping job. But it takes an ultra-narrow view of what is job-related. In a 1989 case it demanded a trucking company hire felons to handle "high-risk" freight such as computers. It lost in court after federal judge Jose Gonzalez acidly noted that if applicants "do not wish to be discriminated against because they have been convicted of theft then they should stop stealing".

But few employers want to spend years and fortunes in court validating such a policy -- or risk a big back pay award should a court disagree with them. When it doubt, an employer has an incentive to take the applicant. Even asking about criminal records can get an employer sued.

Advocates of compulsory felon-hiring sometimes portray critics in the role of the vengeful Inspector Javert of "Les Miserables". To give employers more freedom in these matters would be to "deny someone a reason to earn a living forever," says Wisconsin state senator Gwen Moore (D., Milwaukee). "This says they can never be rehabilitated." That might be a fair criticism of a law that required employers to reject convicts. But the issue here is whether each employer should be free to weigh the pros and (so to speak) cons for himself.

Plenty of jobs will remain open to the jailbird gone straight, who needs to convince only one employer of his reformed character -- rather than, as at present, invoke legal compulsion to dodge such inquiries entirely. Thus in one early case a theft-plagued New Orleans hotel fought for years in court for its right not to employ as a bellman someone who’d been convicted of receiving stolen goods; yet it was happy to offer him a comparably paid job that did not involve access to guests' luggage and rooms.

Much of the American legal establishment staunchly backs criminals’ hiring rights. In Wisconsin the state bar recently sent out letters strenuously opposing any effort to give employers more freedom to consider records. Last year the state’s docket of 3,000 job-bias complaints included 51 complaining of discrimination based on convictions and 42 based on arrests.

Not that "unfortunate situations", to borrow Hassan Smith’s description of the murder he committed, won’t sometimes recur. Randy Don Landin, who worked for Honeywell Corp., strangled his girlfriend, a co-worker at the company, served four years in prison and was released. The company rehired him. Bad news for co-worker Kathleen Nesser. When she rejected Landin’s romantic overtures, he harassed and threatened her for weeks, then killed her with a shotgun blast in her driveway. Asked about the rehiring decision after the second murder, a Honeywell spokesman explained: "The philosophy we have is that we don’t discriminate when it comes to hiring practices".

Of course, organized lawyers have their own solution to such recidivism: big injury lawsuits against the employer by the victims or their families, thus helping to perfect the sued-if-you-do, sued-if-you-don’t regime we impose on hapless businesses. Such claims are "going to be a huge issue," predicted a New York City attorney who won a big settlement for a department store employee assaulted by a co-worker.

Boston feminists called for wider rights to file lawsuits after a case where a supermarket employee was raped. "We want employers to investigate the backgrounds of employees more thoroughly," said the head of the local chapter of the National Organization for Women, apparently unaware that NOW’s allies in the civil-rights movement had erected one obstacle after another to such investigations.

As she put it: "If an employer is not going to look out for the safety of employees, who is?"