A Just Measure of Forgiveness: Reforming Occupational Licensing Regulations for Ex‐Offenders Using BFOQ Analysis

Abstract

In the United States, over 600,000 offenders rejoin society annually, though little has been done to facilitate their transition from the prison to the community. Offender reentry into the workplace has emerged as a particular concern, given that many statutes prohibit public employment for ex-offenders and create obstacles to private-sector employment through occupational licensing requirements. These mandates may explicitly reject ex-offenders, or require "good moral character" or job/relationship tests that all but eliminate meaningful employment options. Several states are reconsidering the implications of these prohibitions, but a clear framework for assessing the validity of exclusionary occupational mandates is often lacking. This article proposes that the bona fide occupational qualification (BFOQ) defense found in employment discrimination law provides a helpful framework for guiding these reform efforts.

Factors That Hinder Offender Reentry Success: A View From Community Corrections Officers

“…Other CCOs stated there was a "lack of jobs and resident opportunities" for newly released offenders and that "employment level affects the environment they choose to live in." These findings were consistent with previous research on the difficulties of successful offender reintegration (Cowan & Fionda, 1994;Graffam et al, 2004;Harding & Harding, 2006;Helfgott, 1997;Levenson & Hern, 2007;Lucken & Ponte, 2008).…”

“…One outcome of the get-tough on crime policies is that many ex-offenders have few employment prospects (Lucken & Ponte, 2008). The unemployment rate for ex-offenders is estimated to be at 25% to 40% (Petersilia, 2003).…”

An exception to the rule: Belief in redeemability, desistance signals, and the employer’s decision to hire a job applicant with a criminal record

“…Exoffenders substantiate attaining such skills with references or recommendations from employment programs facilitators (Davidson, 2011;Holzer et al, 2002), job placement agencies (Fahey et al, 2006) and previous employers (Fletcher, 2001). More formal processes such as obtaining documented evidence of rehabilitation from a governing professional body also provide demonstrable hard skill evidence for ex-offenders to signal their desistance (Love, 2003;Lucken & Ponte, 2008;Maruna, 2011).…”

Beyond personal reform: Adolescent drug-law offenders and the desistance process

“…The desistance process is placed in a legal context when the collateral consequences of penal sanctioning, such as stigma and tenacious criminal records, are taken into account (Morgenstern, 2011). Studies have shown that the reintegration of offenders is hampered by such ‘invisible punishments’ (Travis, 2002), making them matters of desistance and ‘offender reentry’ (Lucken and Ponte, 2008). According to Herzog-Evans (2011), procedures that limit the amount of information available in criminal records and restrict access to these particulars are paramount to the desistance process.…”