Ex-Offenders And the Human Right to Work

Posted: November 16, 2009 in Uncategorized

By J. Peter Sabonis, Esq.  

In June, the United Workers began a series of monthly meetings with ex-offenders to discuss their employment rights.  Given the conventional wisdom, the meetings should have been over in ten minutes.  Other than an entitlement to expunge non-convictions if they happen to fall into the myriad qualifications within Md. Criminal Procedure §10-102, what rights can ex-offenders possibly have, save the right to beg, plead, or grovel before employers for the chance to make an honest living?

The notion that the behavior of felons warrants not only punishment and correction, but a loss of certain privileges of citizenship, like voting, is longstanding.    Many states, however, have had second thoughts, given evidence that conviction-related voting disqualification disproportionately disenfranchises minorities, and that participation in civic life can be an important part of individual rehabilitation and community support for the ex-offender.

But civic life is one thing—minimal economic sufficiency is another.   In Article 45 of its Declaration of Rights, the Maryland Constitution recognizes, as does the federal, that certain inalienable rights exist—rights that that flow from the very fact of that we are human.  Call it what you want—natural law,  higher law, or human rights—but the concept is clearly entrenched in our legal history.

After the holocaust and destruction of World War II, discussions of human rights were common.  As countries gathered to create the United Nations and craft norms for post-war Europe, there were various attempts to articulate inalienable rights in international treaties and covenants.  Fearful that human rights were code for world Communism and Civil Rights for African-Americans, the United States was a reluctant and, at times,  resistant participant.  A detailed and fascinating account of this period can be found in Eyes Off the Prize, by Carol Anderson (Cambridge University Press).

One treaty that the U.S. did adopt was the Declaration of the Rights of Man, part of the charter to the Organization of American States.   Article XIV of the Declaration states that every person has “the right to work, under proper conditions, and to follow his vocation freely, insofar as existing conditions of employment permit. “

Certainly this is a wonderful aspiration, deserving of international recognition and indeed consistent with idea that we as human beings find purpose and the means to subsist in work.  But is it more than a value?  Is it a right?

Under the Maryland Constitution, Declaration of Rights, Art. 2, “all treaties made…under the authority of the United States are and shall be the Supreme Law of the State. “  To date, the  Court of Appeals has sidestepped any issues about the sub-national implications of the provision.   See Register of Wills for Baltimore County v. Arrowsmith, 365 Md. 237, 778 A. 2d 364 (2001),  Telnikoff v. Matusevitch, 347 Md. 561,  702 A. 2d 230 (1996),  Schneider v. Hawkins, 179 Md. 21, 16 A. 2d 861 (1940).

Yet, it has recognized the human right to work.    In Attorney General of Maryland v. Waldron, 289 Md. 683, 426 A. 2nd 529 (1981), the Court of Appeals struck down a law limiting the rights of retired and pensioned judges to practice law.  In finding no rational relationship of the law to the evil it sought to prevent, the Court had little problem in assuming that the right to pursue a vocation existed despite the lack of an express constitutional provision:   “In this case, as we have seen, the regulation effectively denies persons the ability to pursue their chosen vocation, a right which no one can gainsay [contradict] is worthy of vigorous constitutional  vindication.”   Waldron, at  729.   This right also was recognized as early as 1890 in Singer v. State, 72 Md. 464, 19A. 1044  (1890), when the Court also saw no need to cite specific constitutional authority:  “ No one questions the right of every person in this country to follow any legitimate business or occupation he may see fit.  This is a privilege open alike to every one.   His own labor, and the right to use it as a means of livelihood is a right as sacred and fully protected by the law as any other personal or private right.”   Singer, at 1045.

Does an ex-offender lose this right by criminal behavior?  In upholding the regulation of plumbers, Singer did acknowledge that the state, under its police powers, could qualify the right.  Yet, the qualification had a qualification.  Singer cited Dent v. West Virginia, 129 U.S. 114, 9 Sup. Ct. Rep. 231 (1889), to specify its limitation:   “The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity.  If they are appropriate to the calling or profession, and attainable by reasonable application, no objection to their validity can be raised.”  Singer, at 1045.

Other than a few statutory bars and some statutes requiring criminal background investigations for certain professions, the state has, for the most part, stayed its hand with ex-offenders.   See  Md. Education Code Ann. §6-113, COMAR 10.09,54.06,,

This wasn’t the case in the English legal system, from which the Maryland Constitution took its cue.  See  MD. Code Ann., Constitutions, Declaration of Rights, Art. 5.   Under English Common Law, a felony was treated as a “fundamental breach of the contract of homage; the felon forfeited his holding, and the sins of the father were visited on his children by disinheritance…”  J.H. Baker, An Introduction to English Legal History,  p. 412 (Butterworths, 1979).   The latter concept was known as “corruption of the blood,” the former as “forfeiture of estate.”  Id., at 206.   In short, a conviction caused loss of land, and with it the means of a livelihood.  It also eliminated any possibility of inheritance by heirs.

At the time of the Maryland Constitution’s adoption, this form of punishment was finding disfavor.  Accordingly, our founders explicitly stated that in Maryland “no conviction shall work corruption of the blood or forfeiture of estate.”  Md. Code Ann. Const. Declaration of Rights, Art. 27.   But is it enough for the state to stay its hand when private employers effectively work a similar economic and hereditary loss today, through hiring policies relative to criminal records?

Earlier this month, I spoke to a group of 55 participants in a Welfare-to-Work program in Aberdeen, MD.  Repeatedly, they asked me how they were supposed to move off of welfare and provide for their children when employers used their criminal histories against them as a bar to employment.   We talked a bit about the feudal system, about the forfeiture of estate, and about the similarities of their situation to the felonious tenants of old who forfeited the land to which they and their children needed to live.

To date, the Court of Appeals has yet to even consider the connection.  C.f. Cook v. Grierson, 308 Md. 502, 845 A 2d. 1231 (2004) Diep v. Rivas & CNAI, 57 Md. 668, 745 A.2d 1098 (2000), Price v. Hitaffer, 164 Md. 505, 165 A. 470 (1933).

But Federal law has, and its message is consistent with what the U.S. Supreme Court said in 1889 (echoed by our Court of Appeals in Singer) about state limitations on the right to work—the restriction must be “appropriate to the calling and attainable by reasonable application.”  Dent v. West Virginia, supra.   In the mid-1970s, cases before federal judges and the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act, produced a series of rulings that limited the ability of employers to discriminate against minority applicants with criminal histories.   Green v. Mo. Pac. RR., 523 F. 2d 1290 (8th Cir. 1975), aff’d 549 F. 2d 1158 (8th Cir. 1977); Carter v. Gallagher, 452 F. 2d. 315 (8th Cir. 1971); Dozier v. Chupka, 395 F. Supp. 836 (S.D. Ohio 1975); Richardson v. Hotel Corp. of Am. 332 F. Supp. 519 (E.D. La. 1971), aff’d mem., 468 F. 2d 951 (5th Cir. 1972); EEOC Dec. No. 74-89 (2/12/89); EEOC Dec. No. 71-2682 (6/28/71).   Citing studies indicating that minorities were disproportionately involved in the criminal justice system, federal authorities concluded that “neutral” hiring policies that excluded those with criminal histories, adversely impacted minorities in violation of Title VII.

In policy statements, the EEOC advised employers to demonstrate a business justification for their policies, and identified three factors relevant to such necessity:  1) the nature and gravity of the offense or offenses; 2) the time that had passed since the conviction and/or completion of the sentence; and 3) the nature of the job held or sought.”   Policy Statement on the Issue of Conviction Records Under Title VII (1982) II EEOC Compliance Manual §604.   In a nutshell, the EEOC advised employers that criminal record screening practices needed to be job related.

While the concepts of  “job related” and  “business necessity” were thrown into question  by Wards Cove Packing Co. v. Antonio, 490 US 642 (1989) and Congressional reaction to it via the Civil Rights Act of 1991 (42 USC §2000e-2(k)), the EEOC interpretation of Title VII is still good law.  See El v. SEPTA, 479 F. 3d 232 (3rd Cir. 2007).   In fact, an April 8, 2009 ABA-sponsored teleconference with the Acting EEOC Chair indicated that the EEOC is contemplating issuing an updated and revised guidance on the issue to assist employers and establish best practices.  http://abanet.org/cle/programs/t09cch1.html.

Most ex-offenders I know simply want what Title VII promises—the opportunity to tell their stories to employers and be treated as individuals with inherent worth and dignity.  Once a month, they are getting that opportunity.  And Human Rights, as well as Maryland and Federal law, have given us more than enough to talk about.

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