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Pushing To Make The Formerly Incarcerated A Protected Class

By Jack Karp · 2024-02-02 20:18:43 -0500 ·

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After facing stigma due to her criminal record as she looked for a job following her release from a Georgia state prison in 2018, Bridgette Simpson helped convince elected officials in Atlanta to pass a law extending anti-discrimination protections to the formerly incarcerated. (Photo by Ronald Marshall)

Bridgette Simpson had a difficult time starting over after her release from a Georgia state prison in 2018.

She applied for about 40 jobs and was turned down over and over again, she told Law360.

"I applied everywhere. I applied for Lyft. I applied for Uber. I remember applying to Waffle House, I applied to McDonald's," Simpson said. "I applied to everything, and they wouldn't give me employment. It was impossible."

Simpson looked into starting her own business, but learned that her status as a formerly incarcerated person also meant she couldn't get a small business loan.

"It wasn't just employment. It was finding a place to live. It was also wanting to be a parent and being barred from that process," she said. "It was just countless, insurmountable obstacles."

So Simpson and another justice-impacted woman, Denise Ruben, started the Protected Campaign, a project aimed at expanding anti-discrimination laws to make people like themselves a protected class.

And in 2022, they notched their first win when their home town of Atlanta enacted an ordinance banning discrimination against those with criminal records. While it was one of the first laws of its kind in the country, Simpson, Ruben and other activists are now working to encourage similar protections in other cities and, hopefully someday, at the federal level.

"There is definitely an appetite for it. As justice-impacted people, we just want the right to move on," Simpson said. "Everyone has made mistakes. We really would like the opportunity to move on from ours."

The Most Relief With the Least Pen Strokes

Ypsilanti, Michigan, helped spearhead efforts to label those with criminal records a protected class when it enacted its own ordinance in 2020.

The town's ordinance bars employers, landlords and others from discriminating against people with felony convictions, just as the law prohibits discrimination based on race, gender, disability and other protected characteristics.

Atlanta's city council followed Ypsilanti's lead in 2022, amending that city's anti-discrimination ordinance to keep employers, landlords, banks and schools from basing hiring and other decisions on an applicant's criminal history.

The new ordinances are intended to curb widespread — and formerly legal — discrimination against those who've had contact with the justice system, and to make it easier for them to reenter society, according to experts and activists.

"It's very logical to say, if you are a city council member, 'We have a city that has a nontrivial formerly incarcerated population, and this population is having trouble getting jobs, getting benefits, getting training. We need to do something about it,'" said Stephen Menendian, assistant director and director of research at the Othering & Belonging Institute at the University of California, Berkeley.

Many cities and states have tried to address that discrimination with so-called ban-the-box laws that bar employers or landlords from asking about an applicant's criminal record, according to Menendian.

While those laws alleviate discrimination in the specific contexts of employment or housing, activists behind the protected class ordinances hope to end that discrimination in all areas at once.

"We just wanted to figure out what would give us the most amount of relief with the least pen strokes," Simpson said.

Including those with criminal records in a protected class makes sense in the context of anti-discrimination law, according to activists.

"When you look at the definition of a protected class, it's a group of people with a common characteristic being denied opportunity," said Alonzo Waheed, organizing director at Equity and Transformation, a Chicago-based nonprofit founded by and for post-incarcerated people.

The idea of protected classes stems from the U.S. Supreme Court's 1938 decision in U.S. v. Carolene Products , which said that courts should hold to a stricter standard of review laws that discriminate against "discrete and insular" minorities, Menendian explained.

"Discreet and insular" minorities have historically been considered to be racial, ethnic and religious groups, he acknowledged. "But if you take that concept very seriously, is there a group in American society that is more discrete and insular than incarcerated people?"

So Simpson and Ruben started the Protected Campaign to make justice-impacted people a protected class in Atlanta and then around the country, and organizers are pushing legislation in Chicago, Nashville, Miami and elsewhere, according to Simpson.

One of those organizers is Andrea James, executive director and founder of the National Council for Incarcerated Women and Girls, which is looking at advancing protected class legislation in Boston.

"When we were asked to become part of the Protected Campaign Network, it's a no-brainer for us," she said.

"Anything that we can hang on to to make it illegal to discriminate against what should be a protected class, we are interested in trying out," James added.

Striking a Balance

Atlanta's and Ypsilanti's city councils passed their ordinances unanimously, but other efforts to make those with criminal convictions a protected class have faced opposition.

New Jersey Democratic state Sen. Troy Singleton introduced a bill in 2020 that, among other things, would have amended that state's Law Against Discrimination to extend protected-class status to justice-impacted people in housing-related matters.

But the New Jersey Apartment Association, which represents landlords, opposed that element of the legislation, saying the effort to create a standalone protected class "went too far."

"From a broad policy perspective, we do not believe that it is fair or appropriate to provide more protections under the LAD for those who committed crimes versus those who were the victims of those crimes," NJAA Executive Director David Brogan told Law360.

"People should not be punished for the rest of their lives for something they did years earlier. But there must be a balance," he said, adding that "completely removing a landlord's ability to run criminal history background checks would make it impossible for landlords to comply with our obligations to provide a safe and decent place to live."

The association supported a different version of the bill that was signed into law in 2021 as the Fair Chance in Housing Act. While the measure strengthened anti-discrimination protections for those with criminal records, it did not make them a protected class, and kept the door open for landlords to consider aspects of an applicant's crime.

"The legislative process is all about give-and-take, and in order to secure the requisite number of votes for something I think is really important, sometimes you have to take a step back on some of the pieces of any proposal," Singleton said.

"So we really just went about it a little differently, rather than embedding it into our Law Against Discrimination," he added.

Even in its less explicit language, Singleton insisted the law had still helped hundreds of people find housing after being released from prison.

The pushback in New Jersey is just one example of the opposition that future efforts to protect the formerly incarcerated could face. In addition to landlords, Menendian said that employers, as well as libertarian and conservative-aligned groups more broadly, could raise objections, not necessarily because they don't want to give people a second chance, but because they oppose laws in general that create red tape for businesses.

"And that's not an unreasonable concern," Menendian said. "That's why you have to balance the costs and benefits."

The Problem of Enforcement

Even if laws making those with criminal histories a protected class do pass, enforcement could pose a problem, according to Menendian, who likened these laws to ones barring discrimination based on source of income.

Several states and cities have enacted those ordinances, which make it illegal to discriminate against tenants who rely on government housing assistance.

But Menendian pointed out that there are "massive, systematic violations" of those laws due to weak penalties as well as a lack of enforcement and mechanisms to track that enforcement.

In Atlanta, the new protected-class law tasks the city's Human Relations Commission, of which Simpson is a member, with investigating allegations of bias against those with criminal histories. But the commission can only make recommendations to the mayor and city agencies and ask for a response from the mayor's office within 30 days, according to the law's text.

Singleton's original New Jersey bill included $25,000 fines for a first offense. But after opponents like the NJAA pushed back on what they called "Draconian" penalties, those fines were reduced in the final law to up to $1,000 for a first offense, $5,000 for a second offense, and $10,000 for subsequent offenses.

"Of course, after the opportunity to get an ordinance like this passed, then the real hard work comes with how you implement this," said James.

Federal Legislation a Ways Off

Simpson's ultimate goal is to get the Civil Rights Act of 1964 amended to make justice-impacted people a protected class at the federal level, she said.

That could happen as long as there is underlying constitutional authority for it, according to Menendian.

Congress can prohibit discrimination on the basis of race and gender under the 13th, 14th, and 15th Amendments, he said, but authority for a law barring discrimination based on criminal history may be better found under the interstate commerce clause.

Proponents of such a law could argue that discrimination based on criminal status inhibits economic, social and geographic mobility and so undermines commerce between the states, Mendendian explained.

Supreme Court precedent has also held that the 13th Amendment allows Congress to enact laws that eradicate the "badges and incidents of slavery," and that racial discrimination by housing developers and schools is one of those badges of slavery.

So the 13th Amendment could also provide a rationale for protecting those with criminal records if activists claim that formerly incarcerated status is a badge of slavery, according to Menendian.

"Assuming that there is a constitutional basis, there's no reason that I can think of why the federal government couldn't enact protections, just like it has done on the basis of sex and race," he said.

But federal legislation is likely a long way off, Menendian acknowledged, noting that laws like these are usually passed at the local level first, then at the state level, and then, when there's enough momentum behind them, at the federal level.

"If the federal government and the states would do this, it would be better," he said. "But the general pattern of anti-discrimination measures in American society is municipal-to-state-to-federal, not federal-down."

That's not necessarily a bad thing, since ordinances passed at the municipal and state levels allow lawmakers to experiment, according to Mendendian.

"If you've got a variety of versions, then you can see which versions work better," he said.

It could take a while for other cities, states or eventually the federal government to make those with criminal histories a protected class.

In New Jersey, Singleton said he and other lawmakers are waiting to see what effect their Fair Chance in Housing Act has before doing more, though he suggested there was still room for further conversations about classifying justice-impacted people as protected in the future.

"Do I think there's still more work to be done? The jury's still out on that," he said.

Even if more of these ordinances don't get enacted, James said they can be valuable as an organizing tool to get the issue of discrimination against formerly incarcerated people in front of the public.

Simpson, though, is confident that laws like the one she championed in Atlanta will be passed in other cities and, eventually, at the federal level.

"I'm extremely optimistic that with the brilliant organizers and leaders that we have in the justice-impacted community, we would most definitely get this passed in locales, and build enough momentum to actually get a progressive senator or House member to push this bill for us," Simpson added. "I'm very optimistic about that."

--Editing by Adam LoBelia.

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