Tort Reform is the New Black

It’s no secret that the United States has a prison problem: astronomically large incarcerated populations, soaring recidivism rates, a disproportionate number of non-white prisoners — the list of maladies goes on and on. But true to form, Washington has made lackluster progress in addressing these issues. The ongoing War on Drugs, and the War on the War on Drugs, has failed to effect sufficient change, and the pattern of failure is likely to continue. A recent Bureau of Justice study conducted in 30 states shows that 68 percent of former prisoners were arrested for a new crime within three years of release from prison, and 77 percent of former prisoners were rearrested within five years. Continual negative reports will hopefully send policymakers scrambling to find a big fix for this fractured system. However, tucked away in a dusty niche of tort litigation, there are small measures with huge consequences whose reform could signal the start of a meaningful solution: negligent hiring laws for nonviolent offenders.

The search for employment holds some of the most insidious barriers for recently released prisoners. Most states allow employers to deny jobs not only to people who have a criminal record, but also to individuals who were arrested, but never convicted — regardless of how long ago the incident happened. In 2012, The Huffington Post interviewed several former offenders to gain individual perspectives on the job search after prison. HuffPo found that former offenders struggled to readjust to outside life not only because of their time spent in a cell, but also due to a series of systematic barriers: poverty, social condemnation and denial of public housing and drivers licenses. One ex-offender noted that while he was out of literal confinement, he was still “in this proverbial prison of stigma.” With the Internet providing easy access to criminal records, and heavy incentives for businesses to avoid ‘risky hires,’ ex-offenders find themselves frequently passed over for jobs for which they are otherwise qualified.

It should come as little surprise that former offenders, when locked out of the mainstream economic system, are often forced to turn to the black market and crime — wasting untold amounts of economic capital and human potential. Most research indicates that employment either reduces recidivism rates or significantly increases the time until reincarceration, either way allowing time for rehabilitation programs to make their mark. And importantly, recidivism doesn’t only hurt individuals and their communities — it also damages the American economy on a macro scale, with the United States spending about $52 billion a year on correctional costs. The question is not if the United States needs to help former prisoners gain employment — it’s how. While many nonprofits and volunteer programs have dedicated themselves to creating pathways for ex-convicts after their release, reforming negligent hiring is a little talked about policy solution.

Reforming tort law isn’t sexy, but it’s essential for lifting barriers to employment. Negligent hiring refers to a legal claim made by an injured party against an employer for the damaging actions of its employees. The charge is that if an employee commits a crime on the job and has “a dangerous or untrustworthy character,” an employer should have investigated the employee’s background enough to know that person was unfit for the job. For example, an Arkansas company employed a truck driver with a record of unsafe driving, which ended in a wrongful death lawsuit. That, combined with the subsequent negligent hiring litigation, ultimately cost the company $7 million in damages. By not conducting due diligence in their hiring practices, companies can, and have, put their customers and the general public at risk. Given the incredible economic and legal power of corporations in the modern United States, the arguments for negligent hiring laws are clear.

However, these tort cases have serious consequences for prisoners with even minor or nonviolent offenses on their records. Courts and juries, when addressing negligent hiring claims, assess whether the employer exercised “reasonable care in choosing or retaining an employee for the particular duties to be performed.” And in determining whether a person is “improper,” judicial bodies often turn to what society sees as the most obvious indicator of a person’s reputability: their criminal record. Therefore, the very act of hiring a criminal forces a corporation to take on significant and implicit financial liability. Since employers lose an estimated 79 percent of negligent hiring lawsuits — with the average jury award exceeding $1 million — the calculus for a small business or corporation is clear: By hiring someone with a history of drug use or petty theft, a company takes on not only the risk associated with their criminal history, but also the threat of a million-dollar lawsuit if something goes wrong.

In short, current tort law does not distinguish between violent and nonviolent individuals when considering an employer’s liability. This is especially egregious when minor offenses have little bearing on an individual’s ability to perform a specific job. Proponents of negligent hiring law will point to incidents such as a 1991 case of a Florida furniture company that failed to perform a background check on an employee who had an extensive record of violent assault. The worker went on to brutally attack a customer in her own home, and the company was proclaimed liable for $2.5 million. But not all cases are like this, and applying the logic of these rulings broadly creates a ripple effect that prevents the vast majority of former convicts from securing gainful employment.

The weight carried by a criminal record has created a legal trap, impairing the ability of convicted offenders to find work after release. One report showed that 55 percent of employers admitted to conducting background checks in order to “reduce liability for negligent hiring,” while 39 percent did so to “reduce theft, embezzlement…and other criminal activity.” Another study revealed that over 40 percent of employers indicated that they would “definitely not” be willing to hire an applicant with a criminal record, regardless of the crime itself. Simple arrest records can often factor in as well, especially since only 13 states have statutes that explicitly prohibit the use of arrest record inquiries in hiring decisions. The consequence is that an actual conviction may not even be needed for a company to turn down an otherwise qualified job applicant. While the law prohibits using a criminal record alone to make a hiring decision, proving such discrimination in court is an extremely difficult task. All of this leads to a distinct set of legal and cultural barriers to finding employment after prison — or after a wrongful arrest. This might make sense if the majority of convictions were for crimes like armed robbery, murder or rape. But given that drug and immigration offenses, neither of which imply a violent disposition, make up 60 percent of all convictions in the United States, it seems as if arrest records and convictions for crimes are an insufficient determinant for whether an employee will be reasonable and responsible.

Despite the fact that the majority of convicts are nonviolent offenders, language like “weeding out the bad seeds” and “expos[ing] the criminal factor” continues to resonate among the business community. This hysteria incites employers to overprotect themselves against potential legal liabilities. And the overprotection is not spread equally. A 2003 Princeton University study revealed that white applicants with “the same qualifications and criminal records as black applicants were three times more likely to be invited for interviews than black applicants,” showing that although negligent hiring law impacts all sectors of society, its use has a far greater effect on the African-American community, further contributing to a vicious, racially disparate cycle of recidivism and poverty. Sometimes, people of color don’t even have to commit a crime for negligent hiring laws to hurt them. A 2006 study found that “employers who are averse to hiring people with criminal records sometimes presumed…that African-American men applying for jobs have disqualifying criminal records” despite a lack of evidence. A 2012 case demonstrates the prevalence of this problem: Pepsi Beverages settled an Equal Employment Opportunity Commission (EEOC) lawsuit that required them to pay $3.13 million for using a criminal background check policy that adversely impacted African Americans. Sadly, these kinds of lawsuits may not even protect against racist recruitment policies in the future since negligent hiring litigation can often cost companies more than these payouts.

While many argue that the blanket use of these measures is essential to keeping the public safe, the data on convictions show otherwise. Two-thirds of inmates released each year have been convicted of either nonviolent or drug offenses, and crimes like marijuana possession do not represent a genuine threat to people who will interact with the former offenders. Reform advocates have gravitated towards clearer EEOC guidelines as a solution. But this effort misdiagnoses the problem, since these guidelines are already largely in place. The EEOC has regulations, strengthened in 2012, that supposedly limit how much an employer can consider the criminal records of their applicants. But many courts continue to liberally interpret these rules and consistently hold employers accountable for their hiring practices whenever they go awry.

Addressing this issue requires direct action, not vaguely worded guidelines. Absolving employers of financial liability for negligent hiring lawsuits in connection to nonviolent offenders is a clear step towards encouraging companies to hire ex-prisoners. This would put in motion the wheels to reduce recidivism and the social ills that accompany it. In analyzing negligent hiring and its adverse impacts on minority populations, the EEOC points to Automobile Workers v. Johnson Controls, Inc. (1991), in which the ruling noted that “if state tort law furthers discrimination in the workplace…then it will impede the accomplishment of Congress’ goals in enacting [the Civil Rights Act].” The clear racial disparities present in the implementation of these laws make it seem like the fears justices had two decades ago have now come to fruition.

Luckily, the trend can still be reversed. Republicans will find that reforming negligent hiring law protects corporations from frivolous litigation, emphasizes personal responsibility and reduces government expenditure on the legal and penal systems. Democrats can rally behind social justice underpinnings and the assistance these reforms will give to underprivileged communities in finding employment. Moreover, reforming the law will help relieve some of the social stigmas associated with criminal convictions, making communities more welcoming for returning prisoners. While fixing tort law is an obscure battle in the fight for social justice, it can provide quick, meaningful relief to earnest job-seekers caught in a legal trap.

Art by Katrina Machado.