Irina Kashcheyeva*
2007 MICH. ST. L. REV. 1051
INTRODUCTION ........................................................................................ 1052
A. Negligent Hiring in Michigan at Its Nascent Stage .................. 1056
B. An Evasive Concept of Legal Duty: The Triggering Factors ... 1057
C. Establishing Proximate Causation: In the Hands of Jurors? ..... 1060
STATE VIEW ...................................................................................... 1062
A. Limited Federal Protections ...................................................... 1062
1. Title VII: The Theory of Disparate Impact ......................... 1063
2. Equal Protection and Due Process Challenges ................. 1066
B. Approach to Employment Discrimination against Ex-Offenders in
Michigan ................................................................................... 1068
1. Private Employment ........................................................... 1069
2. Licensed Occupations and Public Employment ................. 1070
3. Accessibility of Criminal Records in Michigan .................. 1073
EMPLOYMENT .................................................................................... 1075
A. Court-Issued Orders Restoring Ex-Offenders’ Rights .............. 1077
1. Advantages over Other Methods of Restoration ................ 1079
2. The Two-Shots-at-Restoration Approach ........................... 1082
3. Absolute Restoration: Outer Limits of Proportionality ...... 1084
B. Ex-Offender Anti-Discrimination Statute: Direct Relationship
Test ............................................................................................ 1089
1. The Elements-Only Approach: Protecting Employers from
Chaos .................................................................................. 1090
2. Factors Measuring Direct Relationship—Not Too Personal,
but Personal Enough .......................................................... 1094
C. Accessibility of Criminal Records and Their Effect on Duty in
Negligent Hiring ....................................................................... 1097
Michigan State Law Review
[Vol. 2007:1051
1. The Saga of Criminal Records: Is Sweet Lie Better Than Bitter
Truth? ................................................................................. 1098
2. Expansion of Duty in Negligent Hiring Cases ................... 1099
D. Fiscal Therapy: State Wage Subsidy for Ex-Offenders As a
Supplement to Federal Tax and Bonding Assistance................ 1101
E. An Intermediary Organization for Ex-Offenders—A Missing Link
in Ex-Offenders’ Employment .................................................. 1105
CONCLUSION ............................................................................................ 1107
We are not all in the revolving door. We just need that opportunity once we
do step forth outside those gates.
—Johnny Gonzales, a prison inmate, after
receiving a community college diploma1
Prompted by many tragic incidents of workplace violence,2 the law of
negligent hiring represents a vigorous response of our society to careless
recruitment practices of some employers. Animated by the direct, empirically-proven connection between ex-offenders’ recidivism and their ability
to obtain meaningful employment,3 the public policy towards successful
reintegration of ex-offenders into society also represents a priority that we,
as the most incarcerated country in the world, cannot underestimate.4
B.A. & M.A. 2002, Tomsk State University, Russia; Juris Doctor Candidate
2008, Michigan State University College of Law. I would like to thank Eugene Volokh and for the suggestion of the topic, and Professor Jeremy Harrison and the Law
Review staff for their help in developing this Comment.
1. Day to Day: California Prison Inmates Earn School Degrees (Michigan Public
Radio broadcast Feb. 16, 2007), available at story/story.php?storyId=7447943.
2. The growth of the incidents of workplace violence is alarming throughout the
country in general and in Michigan in particular, where homicide is the leading cause of
work-related deaths. Ann E. Phillips, Violence in the Workplace: Reevaluating the Employer’s Role, 44 BUFF. L. REV. 139, 140 n.5 (1996) (citations omitted). Nationwide, workplace
violence costs employers annually 876,000 lost workdays and sixteen million dollars in lost
wages. Jules M. Davis, Potential Violence to the Bottom Line—Expanding Employer Liability for Acts of Workplace Violence in North Carolina, 78 N.C. L. REV. 2053, 2054 (2000)
(citation omitted).
3. See Byron Harrison & Robert Carl Schehr, Offenders and Post-Release Jobs:
Variables Influencing Success and Failure, 39 J. OFFENDER REHABILITATION 35, 39-40
(2004) (discussing different studies establishing the connection between ex-offenders’ employment and recidivism rate, but pointing to a group of researchers who saw only “minimal
positive results” of employment in prevention of recidivism).
4. In 2000, the inmate population of the United States reached a whopping
2,026,596 incarcerated, seventy percent of whom were repeat offenders. Id. at 36. Con-
Reaching a Compromise
Somewhere at the crossroads of these two policies lies a problem that, to
some extent, concerns each one of us—the natural choice of employers to
err on the side of caution and the resulting employment discrimination
against people with criminal records.5 Although this problem has already
received the attention of some states, it still remains largely unresolved in
the majority of jurisdictions.6
Michigan belongs to the latter group. Rather than enacting its own
legislation prohibiting misplaced focus on criminal records in hiring decisions, the state relies on the limited and selective protections afforded to exoffenders by federal statutes such as Title VII of the Civil Rights Act of
19647 and the Equal Protection and Due Process Clauses of the Fourteenth
Amendment.8 Apart from the minimal constraints of these safeguards, local
employers are virtually free to discriminate against ex-offenders on the basis of criminal records no matter how unrelated to the position sought and
regardless of the gravity of offenses. Indeed, fears of potentially devastating negligent hiring liability reinforce employers’ inclination to do so.9
Moreover, the state routinely denies ex-offenders occupational licenses for a
host of professions.10 The only restraint that Michigan employers or licensing bodies need to account for in making negative employment or licensing
determinations is the prohibition against the use of misdemeanor arrest records to an applicant’s detriment.11 Beyond that, employers are given carte
vinced by these threatening numbers, the House of Representatives recently proposed the
Second Chance Act of 2005, H.R. 1704, 109th Cong. (2005), not yet adopted, which implements the rehabilitative ideals of criminology and, among other goals, seeks to address problems with obtaining employment by ex-offenders. Id. § 2(22).
5. Indeed, as one author points out, “risks averted by exclusion of offenders in the
workplace might translate into increased risks of crimes to the public at large.” Patricia M.
Harris & Kimberly S. Keller, Ex-Offenders Need Not Apply, 81 J. CONTEMP. CRIM. JUST. 6,
19 (2005). Hence, the relationship between the law of negligent hiring and the crime rate
within the community creates a dilemma affecting all of the community’s members.
6. In contrast to the U.S. practice, almost all prospering countries have uniformly
passed some sort of legislation protecting ex-offenders from employment discrimination.
Helen Lam & Mark Harcourt, The Use of Criminal Record in Employment Decisions: The
Rights of Ex-Offenders, Employers and the Public, 47 J. BUS. ETHICS 237, 237 (2003). To
give just a few examples, Australia, Britain, Canada, and New Zealand have enacted laws
prohibiting discrimination of ex-offenders—either in the form of “‘spent convictions’ statutes,” in effect sealing a conviction from public view, or by way of “human rights statutes”
prohibiting discrimination based on the criminal record. See id. at 246-50 (proposing to
merge the techniques presented by the two kinds of statutes).
7. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000(a)(h) (2000)). See discussion infra Subsection II.A.1.
8. U.S. CONST. amend. XIV, § 1. See discussion infra Subsection II.A.2.
9. See discussion infra Part I.
10. See discussion infra Subsection II.B.2.
11. Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2205a(1) (2000); see
Seals v. Henry Ford Hosp., 333 N.W.2d 272, 275-76 (Mich. Ct. App. 1983) (enforcing the
Michigan State Law Review
[Vol. 2007:1051
blanche to discriminate against ex-offenders who, as a result, suffer massive
exclusion from many workplace opportunities.12
This Comment will argue that, to limit negative effects of the negligent hiring doctrine on people with criminal records,13 Michigan should
adopt a holistic approach consisting of a number of well-coordinated
measures that both stimulate employers’ willingness to hire ex-offenders
and prevent employers from arbitrarily refusing to hire offenders.14 These
measures should prohibit employment discrimination based on offenses not
compromising ex-offenders’ ability to perform their duties, empower sentencing courts to issue orders removing collateral disabilities of a conviction, and universally require employers to investigate applicants’ criminal
records at hiring. At the same time, the state should also strive to allay employers’ fears in hiring ex-offenders. This can be achieved through creating
a wage subsidy program covering a share of ex-offenders’ wages; allowing
employers free access to applicants’ criminal records; establishing an intermediary organization dealing specifically with ex-offenders’ employment;
and shielding employers’ decisions from judicial review if hiring occurs
after a criminal records inquiry or via an ex-offender intermediary organization. This model strikes the correct balance between the interests of exoffenders and employers and helps to bring a fundamental change in the
state’s attitude towards collateral consequences of a conviction.
prohibition against the use of arrest records at hiring and listing scholarly articles endorsing
the prohibition).
12. The damaging effects of such exclusion are startling. In the United States, more
than forty percent of released prisoners are rearrested within the first year after their release;
this figure rises to about two-thirds of all released prisoners three years after release. Devah
Pager, Evidence-Based Policy for Successful Prisoner Reentry, 5 CRIMINOLOGY & PUB.
POL’Y 505, 509 (2006) (citing Bureau of Justice Statistics, Recidivism of Prisoners Released
in 1994 (2002), In Michigan in particular,
eighteen percent of the parolees return to prisons within one year following their release, and
about forty-four percent of the released offenders return to the Department of Corrections
within two years. NGA Center for Best Practices, Prisoner Reentry – Michigan (Dec. 10,
2004), (last visited Feb. 1, 2008).
13. To be sure, a criminal record is but one of a host of ex-offenders’ characteristics
contributing to their low employment rate. Factors such as poor education, lack of vocational skills, the “prisonization” effects caused by serving a lengthy prison term, and a poor
economy also impair the group’s competitiveness in today’s tight job market. See Harrison
& Schehr, supra note 3, at 42-49 (surveying variables affecting ex-offenders’ employability).
14. Concerned with the far-reaching consequences of the criminal conviction, the
State Bar of Michigan, too, has recently decided to initiate “work to come up with holistic
solutions to criminal justice” and collateral consequences of the conviction. State Bar of
Michigan, New SBM Initiative to Address Civil Law Consequences of Criminal Convictions
(Nov. 13, 2006),
Although without any definitive results yet, these efforts are a promising beginning.
Reaching a Compromise
The Comment proceeds in three parts. Part I discusses the current status of the tort of negligent hiring in Michigan and illuminates its evasive
and unpredictable contours. Part II describes available federal safeguards
against records-based discrimination, and familiarizes readers with the
Michigan approach towards availability and use of criminal records in private and public employment and licensing. The analysis of suggested legislative alternatives addressing the issue of ex-offenders’ employment follows
in Part III. Among other things, this Part endorses court-issued orders restoring ex-offenders’ rights; supports ex-offender anti-discrimination statutes; favors protecting employers’ business judgment; and argues for granting employers free access to applicants’ criminal records, except for the
records of arrests. Lastly, Part III suggests the creation of a wage subsidy
program for ex-offenders and the establishment of an intermediary organization facilitating both ex-offenders’ and employers’ needs at hiring.
Unlike other jurisdictions in the country,15 Michigan has been relatively slow to recognize the cause of action for negligent hiring, retention and
supervision.16 Some claims of employers’ negligence have been traditionally foreclosed by the exclusivity provision of the Workers’ Disabilities
Compensation Act,17 which was intended to provide a quick and exclusive
response to employees’ injuries in the course of employment.18 Others—
15. In some jurisdictions, negligent hiring is deemed to be one of the “fastestgrowing segments of law.” Jennifer Leavitt, Walking a Tightrope: Balancing Competing
Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281, 1301
(2002) (quoting a Phoenix newspaper article) (citation omitted).
16. These three torts are far from an exhaustive list of claims based on a violation of
employers’ common law duty of care to third parties. Related to them are the torts of negligent recommendation or misrepresentation and of failure to warn. See Luis F. AntonettiZequeira, Workplace Violence: Its Legal Perspective and Its Socio-Economic Impact, 36
REV. JUR. U.I.P.R. 93, 105-09 (2001) (analyzing the elements for each of these claims). This
Comment will focus only on negligent hiring as representative of other possible claims premised on the direct liability of an employer.
17. MICH. COMP. LAWS § 418.131 (1999).
18. See, e.g., Oaks v. Twin City Foods, Inc., 497 N.W.2d 196, 197 (Mich. Ct. App.
1992) (holding that a suit based on employer’s negligence was foreclosed by the exclusivity
provision of the Workers’ Compensation Act when the employee was injured after being
directed to perform work on the unguarded catwalk at the job site); Downer v. Detroit Receiving Hosp., 477 N.W.2d 146, 148 (Mich. Ct. App. 1991) (affirming the dismissal of the
plaintiff’s negligent hiring claim because it was subsumed by the remedies under the Workers’ Disability Compensation Act); see generally Phillips, supra note 2, at 150 (discussing
nationwide tendencies in the development of workers’ compensation laws and exceptions to
them). But see Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 HARV. L. REV. 1641, 1660-61 (1983) (maintaining that the bargain
Michigan State Law Review
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such as claims based on workplace sexual harassment—could not be premised on the common-law negligence of the employer because of the exclusive remedy provided for sexual harassment in the Elliot-Larsen Civil
Rights Act.19 Yet, a suit directly against an employer has two important
advantages over actions sounding in vicarious liability: it entitles qualified
plaintiffs to greater compensatory damages, and it opens up a path to punitive damages in case of employers’ recklessness or gross negligence.20 Naturally, these advantages make this theory highly popular among plaintiffs.21
A. Negligent Hiring in Michigan at Its Nascent Stage
The first affirmative recognition of the tort in Michigan appears in a
seminal negligent hiring case, Hersh v. Kentfield Builders, Inc.22 Although
the court styled its opinion in terms of the duty to keep the premises safe for
the public rather than in terms of “negligent hiring,” it clearly imposed on
employers a duty of reasonable care in hiring employees.23 Predictably, the
court regarded an applicant’s criminal record as having a direct bearing on
the violation of this duty.24
In state-law vernacular, Hersh established the so-called “violent propensity” exception to the employers’ non-liability rule. This exception held
employers liable for employees’ actions even outside the scope of employoffered by the workers’ compensation system is no longer fair and arguing for an expansive
treatment of exceptions to the statutes).
19. Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §§ 37.2101-37.2804 (2001).
See, e.g., McClements v. Ford Motor Co., 702 N.W.2d 166 (Mich. 2005) (dismissing the
negligent retention claim based on workplace sexual harassment and holding that the exclusive remedy to sexual harassment claims is provided under the State’s civil rights act). But
cf. Rosanne Lienhard, Negligent Retention of Employees: An Expanding Doctrine, 63 DEF.
COUNS. J. 389, 390-91 (1996) (cataloguing other jurisdictions’ successful negligent retention
claims arising out of sexual harassment).
20. See Michael F. Wais, Negligent Hiring—Holding Employers Liable When Their
Employees’ Intentional Torts Occur Outside of the Scope of Employment, 37 WAYNE L. REV.
237, 247 (1990) (summarizing the differences between employer liability based on respondeat superior and liability grounded in negligent hiring, and arguing for an expansion of
the tort of negligent hiring in Michigan); John C. North, The Responsibility of Employers for
the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 CHI.-KENT L.
REV. 717, 717-19 (1977) (demonstrating differences between the two theories through the
use of hypothetical examples).
21. As a matter of background knowledge, the negligent hiring doctrine originated
from the common law fellow-servant rule imposing on employers a duty to select prospective employees so that they would not harm their fellow co-workers at the job. See Martin R.
Loftus, Employer’s Duty to Know Deficiencies of Employees, 16 CLEV.-MARSHALL L. REV.
143, 145-46 (1967) (explaining the origins and development of the negligent hiring doctrine).
22. 189 N.W.2d 286 (Mich. 1971).
23. Id. at 288-89.
24. Id. The case featured an assaultive builder whose employer knew about the
builder’s previous conviction for manslaughter but still hired the man. Id. at 287-88.
Reaching a Compromise
ment “if the employer knew, or should have known, of the employee’s violent propensities.”25 Specifically, to establish a claim of negligent hiring, a
plaintiff must prove the four traditional components of a negligence action:
(1) existence of a legal duty on the part of the defendant; (2) a breach of that
duty; (3) causation; and (4) damages.26 Among these elements, the notion
of legal duty and the interrelated notion of causation present the greatest
B. An Evasive Concept of Legal Duty: The Triggering Factors
The concept of legal duty in the context of negligent hiring has two
separate dimensions. At one level, the existence of duty depends on the
relationship between the parties: absent a “special relationship” between the
plaintiff and the defendant or the defendant and a third party, employers
have no legal duty to protect the defendant or a third party from the criminal
acts of their employees.27 Michigan courts have, however, struggled with
determining precisely what kinds of relationships trigger this protective duty
and exactly what degree of background investigation satisfies the duty when
it exists.28
25. Brown v. Brown, 716 N.W.2d 626, 629 (Mich. Ct. App. 2006). See J. Hoult
Verkerke, Notice Liability in Employment Discrimination Law, 81 VA. L. REV. 273, 306
(1995) (discussing the interesting concept of managerial liability based on notice: “Employers that learn of a tendency towards violence . . . must respond with appropriate precautions
against further harm”).
26. Kendrick v. Ritz-Carlton Hotel Co., No. 256696, 2006 Mich. Ct. App. LEXIS
2393, at *6 (Mich. Ct. App. July 27, 2006). Compare with Evans v. Ohio State Univ., 680
N.E.2d 161, 171 (Ohio Ct. App. 1996) (presenting a much more elaborate, five-prong standard for negligent hiring liability: “(1) the existence of an employment relationship; (2) the
employee’s incompetence; (3) the employer’s actual or constructive knowledge of such
incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the
employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries”) (quotation omitted).
27. Brown, 716 N.W.2d at 629 (citing Murdock v. Higgins, 559 N.W.2d 639, 643
(Mich. 1997)).
28. See, e.g., Burch v. A & G Assocs., 333 N.W.2d 140, 143-44 (Mich. Ct. App.
1983) (finding a special relationship between a passenger and a common carrier, but not
reaching the issue of whether the existing heightened duty demanded universal background
checks of carrier’s employees); Tyus v. Booth, 235 N.W.2d 69, 71 (Mich. Ct. App. 1975)
(finding a special duty between a gas station operator and business invitees, but holding that
the duty did not encompass affirmative in-depth background checks of all employees); Bradley v. Stevens, 46 N.W.2d 382, 384-85 (Mich. 1951) (holding that a car shop owner’s duty
towards his customers did not demand affirmative background checks of all prospective
employees). Compare with Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *9-14 (finding
no special relationship between an inn-keeper and a guest such as to give rise to the innkeeper’s duty to perform an authorized criminal background check of a prospective employee);
Campbell v. Kovich, 731 N.W.2d 112 (Mich. Ct. App. 2006) (holding that Michigan does
not recognize a cause of action for negligent hiring of an independent contractor); see gener-
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[Vol. 2007:1051
At another level, the investigative duty arises only where a defendantemployer should have foreseen that certain conduct would pose an unreasonable risk of harm to the victim.29 The existence of actual or constructive
knowledge forewarning the employer of the possibility of harm to others is
essential for establishing foreseeability.30 To be sure, the term “foreseeability” in the negligent hiring setting may cause some confusion, for a fictitious reasonable person is not always required to anticipate the criminal
conduct of others.31 Nevertheless, in deciding when it is reasonable for the
employer to anticipate the employee’s criminal conduct, courts have generally used either the prior similar incidents rule or a broader, totality-ofcircumstances approach.32 Of these two, Michigan seems to adhere to the
latter standard.33
Interestingly, Michigan courts have been reluctant to impose on employers an affirmative legal duty to investigate backgrounds of all prospec-
ally North, supra note 20, at 721 (designating the landlord-tenant and employer-business
customer relationships as the two situations in which a special duty to protect arises); Cindy
M. Haerle, Minnesota Developments: Employer Liability for the Criminal Acts of Employees
Under Negligent Hiring Theory: Ponticas v. K.M.S. Investments, 68 MINN. L. REV. 1303,
1308 (1984) (summarizing the countrywide tendency of finding liability in cases “where
employers invite the general public onto the business premises, or require employees to visit
residences or employment establishments”) (citations omitted).
29. See Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *7 (“The existence of a duty
depends in part on foreseeability, i.e., whether it was foreseeable that the actor’s conduct
may create a risk of harm to the victim.”). For an argument for elimination of the unpredictable foreseeability-of-harm component of employers’ duty, see Stephen J. Beaver, Beyond
the Exclusivity Rule: Employer’s Liability for Workplace Violence, 81 MARQ. L. REV. 103,
131-32 (1997). Naturally, foreseeability and special relationship between the parties are not
the only factors in determining the existence of the duty to investigate. Other, less significant factors include the likelihood of the injury, the immediate link between the conduct and
the injury, the level of the conduct’s blameworthiness, and policy considerations associated
with imposing potential liability on the defendant. Kendrick, 2006 Mich. Ct. App. LEXIS
2393, at *8 (citing Terry v. City of Detroit, 573 N.W.2d 348, 352 (Mich. Ct. App. 1997)).
30. Samson v. Saginaw Prof’l Bldg., Inc., 205 N.W.2d 833, 839 (Mich. Ct. App.
31. See Phillips, supra note 2, at 165 (quoting Gregory A. Crouse, Negligence Liability for the Criminal Acts of Another, 15 J. MARSHALL L. REV. 459, 465 (1982)) (“The law
ordinarily does not require the prudent person to expect the criminal activities of others.”).
32. See id. at 169-70. Under the prior similar incidents rule, courts consider solely
whether the act was foreseeable in light of the “proximity, time, number and types . . . of
prior violent incidents,” whereas the totality-of-circumstances inquiry focuses not only on the
past criminal acts, but also on the “nature of the business, the condition of the premises and
the surrounding neighborhood.” Id. Compare Sch. Bd. of Palm Beach County v. Anderson,
411 So. 2d 940, 942 (Fla. Dist. Ct. App. 1982) (requiring showing of similar incidents in
order to find foreseeability), with Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653, 659-60
(Cal. 1985) (holding that the existence of prior incidents in itself is not enough to establish
foreseeability of a criminal act).
33. See cases cited supra note 28.
Reaching a Compromise
tive employees.34 This position is not unique: despite the intense criticism
of the absence of a legal duty to investigate—the rule that obviously rewards employers’ ignorance of employees’ convictions—courts in other
states have generally concurred that imposing an affirmative duty is unduly
burdensome.35 The effect of courts’ reluctance to demand universal background checks was the shrinking of the concept of constructive knowledge
about applicants’ violent propensities. Accordingly, with the exception of a
few opinions,36 employers are almost never required to attempt to ascertain
whether an applicant has dangerous proclivities, even though the absence of
the requirement, according to some, tends to “eviscerate[] any question of
whether an employer ‘should have known’ of a danger.”37
Significantly, proceeding to hire an applicant despite the discovered
criminal record is not dispositive of an employer’s liability either.38 Prior
convictions notwithstanding, “even a conviction for a crime of violence,
does not in itself establish the fact that that person has a violent or vicious
nature so that an employer would be negligent in hiring him . . . .”39 Never34. See, e.g., Tyus v. Booth, 235 N.W.2d 69, 71 (Mich. Ct. App. 1975) (“[A] gasoline service station employer . . . was not required to conduct an in-depth background investigation of his employee.”); Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at ∗11 (a defendant-hotel was under no obligation to conduct a criminal background check of its prospective
employees, even though all of them consented to it).
35. See, e.g., Garcia v. Duffy, 492 So. 2d 435, 439 (Fla. Dist. Ct. App. 1986) (holding that the duty to investigate is triggered only when an employer is responsible for bringing
third persons in contact with employees whom he or she knows or has a reason to know to be
dangerous); Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 912 (Minn. 1983) (holding that the
scope of reasonable investigation broadens with the amount of risk posed by careless employment to third persons); Stevens v. Lankard, 254 N.E.2d 339, 339 (N.Y. 1969) (affirming
the lower court’s dismissal of the plaintiff’s claim where the employer did not have actual
knowledge of the employee’s conviction from another state). For arguments in support of
imposing a universal legal obligation to conduct a background check, see Dermot Sullivan,
Employee Violence, Negligent Hiring, and Criminal Records Checks: New York’s Need to
Reevaluate Its Priorities to Promote Public Safety, 72 ST. JOHN’S L. REV. 581, 600-01 (1998)
(arguing that a criminal background check must be mandatory); Beaver, supra note 29, at
103 (urging the congressional action imposing a uniform statutory duty of background
checks to arrive at a clear and unequivocal standard of care).
36. One of a few rare cases where the notion of constructive knowledge finds its
application is Samson v. Saginaw Professional Building, Inc., 205 N.W.2d 833, 839 (Mich.
Ct. App. 1973), where, despite the lack of actual knowledge, the knowledge of the tenant’s
violent propensities was constructively imputed to the landlord-defendant and the duty to
conduct an in-depth investigation of the tenant’s background arose. See also Brown v.
Brown, 716 N.W.2d 626, 633 (Mich. Ct. App. 2006) (finding the possibility of constructive
knowledge about the employee’s violent propensities based on the victim’s repeated complaints to her employer about her offender’s sexual advances).
37. Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *21-22 (Davis, J., dissenting).
See generally Sullivan, supra note 35, at 593 (observing that courts “virtually never find
employers liable because they ‘should have known’ of an employee’s harmful propensities”).
38. Hersh v. Kentfield Builders, Inc., 189 N.W.2d 286, 289 (Mich. 1971).
39. Id. (quoting trial court’s jury instructions).
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[Vol. 2007:1051
theless, this caveat does not sufficiently protect ex-offenders’ interests.
Employers will remain wary of hiring ex-offenders as long as a violent
crime conviction provides a sufficient forewarning to trigger a further, indepth inquiry into the background of an employee.40 Since the exact scope
of that inquiry has not yet been defined, employers will likely prefer to err
on the side of caution.
C. Establishing Proximate Causation: In the Hands of Jurors?
Adding to the vagueness of the legal duty are the uncertainties of causation. Generally, causation exists where a certain act is within the orbit of
foreseeable risks or, alternatively, where the negligence of the employer
directly created a given risk.41 In both cases, though, proximate cause will
be found only if it is the offender’s employment relationship with the defendant that gave him access to the victim.42 Additionally, the chain of causation may be broken by an intervening criminal act that, unless “reasonably
foreseeable,” relieves employers of negligent hiring liability.43 By contrast,
the chain of causation will remain intact regardless of a third person’s intervening criminal act if an employer “realized or should have realized the
likelihood that such a situation might be created.”44
Bean v. Directions Unlimited, Inc.,45 a case based on troubling facts,46
illustrates the complexities of establishing proximate cause in Michigan.
Although the jury in that case found the defendant-center negligent in hiring
and supervising its employee, the center did not have to ultimately pay any
40. Brown, 716 N.W.2d at 632-33.
41. See generally Phillips, supra note 2, at 184-85 (outlining the two approaches to
proximate causation and cataloguing states accordingly).
42. Cf. Bean v. Directions Unltd., Inc., 609 N.W.2d 567, 571 (Mich. 2000) (refusing
to find proximate cause where the sexual assault of a mentally impaired victim was committed by an employee of a drop-in medical center whose presence on the premises was not
authorized). See generally Janet E. Goldberg, Employees with Mental and Emotional Problems—Workplace Security and Implications of State Discrimination Laws, the Americans
with Disabilities Act, the Rehabilitation Act, Workers’ Compensation, and Related Issues, 24
STETSON L. REV. 201, 221 (1994) (“Proximate cause should exist . . . if the employee’s position is such that it gives him access to the person he harms.”).
43. McMillian v. Vliet, 374 N.W.2d 679, 682 (Mich. 1985).
44. Metcalf v. Waterbury, 231 N.W.2d 437, 442 (Mich. Ct. App. 1975) (quoting
45. 609 N.W.2d 567 (Mich. 2000).
46. The plaintiff was a woman of limited mental abilities who alleged to have been
sexually victimized by an employee of a drop-in center for individuals with mental and emotional maladies. Id. at 568. The interaction occurred while the employee visited the patient
before the center’s operating hours. Id. The offender, a past patient himself, had been previously convicted of criminal sexual conduct involving a mentally impaired victim at a similar
facility. Id. at 569. Despite the knowledge of this fact, the defendant-center continued its
working relationship with the offender. Id.
Reaching a Compromise
damages due to the lack of proximate causation.47 Because of the beforehours occurrence of the complained-of incident and the offender’s dual role
as an employee and an ex-patient, the court held that the offender’s act “was
not accomplished through the exercise of authority given to [him] by [defendant]” and was thus not the proximate cause of the victim’s harm.48
This outcome may be explained by the deferential standard of review
of the jury findings on appeal.49 Or the decision might simply have been
wrong. As the dissent compellingly argues, the employee’s contact with the
victim could not have occurred outside the facility, and the offender gained
access to the facility solely by virtue of his employment there, so the requisite proximate cause should have been found.50
This decision is particularly interesting because of the clear distinction
that it draws between the issues of legal duty and causation. Normally interrelated, these two concepts are tied together especially close in the case
of negligent hiring, where the determination of the duty itself makes the
estimation of whether the intervening criminal act was foreseeable.51 Equally significant is the fact that the decision passes both the determination of
foreseeability and that of proximate causation to the jury—the route usually
more favorable for plaintiffs and the one that limits courts’ ability to restrict
liability as a matter of law.52 Although this strategy may facilitate reaching
a well-balanced decision tailored to particular facts, it may at the same time
fail to provide sufficient certainty and predictability to employers. As a
corollary, this failure may lead to new frontiers in discriminating against exoffenders in their attempts to obtain hard-to-find employment in Michigan.53
47. Id. at 570.
48. Id. at 571.
49. After all, many contested findings were made by the jury. Id. at 568.
50. Id. at 573-74 (Kelly, J., dissenting). This position is consistent with the views of
many other jurisdictions. See, e.g., Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 915 (Minn.
1983) (finding the proximate cause when an apartment manager enabled access of the offending employee to tenants by entrusting him a passkey to an apartment building); Williams
v. Feather Sound, Inc., 386 So. 2d 1238, 1240 (Fla. Dist. Ct. App. 1980) (finding employer
liable even though an employee gained access to the plaintiff’s apartment unlawfully).
51. See Phillips, supra note 2, at 191 (“[I]n jurisdictions where foreseeability is a
duty determinant, and the court subsequently rules that a duty exists to protect the defendant
based on foreseeability, then the issue of causation disappears.”).
52. See id. at 191-93 for a discussion of other courts’ concerns over the merger
between the inquiry into foreseeability based on the “combination of factors” and the issue of
proximate causation. But see Laura DiCola Kulwicki, A Landowner’s Duty to Guard
Against Criminal Attack: Foreseeability and the Prior Similar Incidents Rule, 48 OHIO ST.
L.J. 247, 260-62 (1987) (arguing that the determination of foreseeability is the domain of the
53. Studies indicate that even legal disincentives aside, poor economy in the region,
general poverty, and high unemployment rates—all quite characteristic of Michigan today—
are “key factors impacting ex-offender employability and recidivism.” See Harrison &
Schehr, supra note 3, at 49 (citing to a variety of studies concluding the same).
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As the total number of incarcerated individuals kept climbing to inordinate heights,54 and the stigma of the conviction strengthened,55 some states
began passing statutes facilitating ex-offenders’ reentry and limiting collateral consequences of the conviction.56 Other states, including Michigan,
maintained the status quo, instead relying solely on available federal statutes.57 Unfortunately, these statutes do not directly focus on ex-offenders as
a group.58 Rather, federal laws protect ex-offenders only insofar as plaintiffs can prevail on the challenges grounded in other suspect classifications.59 In light of the proliferation of restrictions on ex-offenders’ employment and licensing,60 and the growing number and accessibility of criminal records in Michigan,61 the resistance to ex-offenders’ successful reintegration has escalated to the level where federal protections are grossly inadequate and an affirmative action by the state is long overdue.
A. Limited Federal Protections
Federal law provides ex-offenders with meager safeguards against
their exclusion from employment opportunities. Primarily, protections
come from Title VII of the 1964 Civil Rights Act62 and sometimes from the
54. See supra note 4. During the last thirty years, the country saw a five-fold increase in the number of incarcerated individuals. Ben Geiger, The Case for Treating ExOffenders as a Suspect Class, 94 CAL. L. REV. 1191, 1194 (2006).
55. Employment is only one of many collateral disabilities faced by ex-offenders.
In addition, ex-offenders are also vastly disadvantaged in many other areas ranging from
immigration, eligibility for student loans, voting rights, jury participation, parental rights, and
rights to hold public office. See Jeremy Travis, Invisible Punishment: An Instrument of
IMPRISONMENT 15, 22-24 (Marc Mauer & Meda Chesney-Lind eds., 2002) [hereinafter
Travis, Invisible Punishment] (enumerating state and federal encumbrances to ex-offenders’
successful reentry).
56. See, e.g., New York, Wisconsin, Minnesota and Hawaii anti-discrimination
statutes described infra notes 209-12.
57. For a more complete description of the nuances of jurisdictional approaches to
ex-offenders’ problems, and for information on the number of jurisdictions electing to enact
measures to protect ex-offenders, see analysis infra pp. 1089-1092.
58. See discussion infra Section II.A.
59. See id.
60. See infra Section II.B for a discussion of the obstacles to employment and licensing of ex-offenders in Michigan.
61. For a discussion of the situation surrounding criminal records in Michigan, see
discussion infra Subsection II.B.3.
62. 42 U.S.C. §§ 2000(a)-(h) (2000).
Reaching a Compromise
Equal Protection and Due Process Clauses of the Fourteenth Amendment.63
Despite the suggestions of some jurists,64 criminal record is not a suspect
classification and, therefore, employment restrictions based on criminal
record are subject to a low-level, rational basis review.65
1. Title VII: The Theory of Disparate Impact
The narrow avenue for bringing an ex-offender’s Title VII suit is a
theory of disparate impact enunciated in Griggs v. Duke Power Co.66 Under
this theory, the lack of an employer’s discriminatory intent for introducing
certain screening mechanisms is irrelevant; all that matters is whether the
practice functions as “built-in headwinds” sifting out minority groups and
63. U.S. CONST. amend. XIV, § 1. See Kay Kohler, The Revolving Door: The Effect
of Employment Discrimination Against Ex-Prisoners, 26 HASTINGS L.J. 1403, 1408-29
(1974) (analyzing the remedies provided by Title VII and the Fourteenth Amendment to exoffenders). In addition, plaintiffs may, in some instances, sue the government under a provision of the Federal Torts Claim Act, 28 U.S.C. § 1346(b) (2000). See, e.g., Senger v. United
States, 103 F.3d 1437, 1443-44 (9th Cir. 1996) (plaintiff permitted to sue for negligent hiring, negligent supervision, and negligent failure to warn, after a post office employee
grabbed him by the neck and threatened to kill him). The negligent hiring suits against the
government are, however, outside the scope of this Comment.
64. See, e.g., Geiger, supra note 54, at 1215-31 (2006) (arguing that ex-offenders
should be treated as a suspect classification deserving a heightened judicial protection); cf.
Miriam J. Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework
for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J.L.
SOC’Y 18 (2005) (analyzing successful challenges to occupational restrictions based on overbreadth and ex-offender classification and concluding that courts treat ex-offenders as a
“somewhat suspect” class). But cf. RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE
AGAINST EMPLOYMENT DISCRIMINATION LAWS 197-200 (1992) (concluding that protections
afforded on the basis of a conviction record under a theory of disparate impact are contrary to
the intent of the framers of the Civil Rights Act of 1964); Thomas M. Hruz, The Unwisdom
of the Wisconsin Fair Employment Act’s Ban of Employment Discrimination on the Basis of
Conviction Records, 85 MARQ. L. REV. 779, 857 (2002) (proposing to repeal a local statute
narrowing the instances of permissible convictions-based discrimination because “a mutable
trait that is widely recognized as being negative, such as an individual’s evidenced involvement in criminal activity, should not be placed on the same plain as other bases of discrimination derived from immutable and non-nefarious traits”).
65. Hawker v. N.Y., 170 U.S. 189, 192 (1898). See Elena Saxonhouse, Unequal
Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment
Discrimination, 56 STAN. L. REV. 1597, 1615-35 (2004), for the analysis of employment
discrimination cases decided under the rational basis test and an interesting comparison of
the results with the outcomes of ex-felons disenfranchisement cases.
66. 401 U.S. 424 (1971). Quite apart from criminal records, the case involved requirements for obtaining a high school diploma or passing a standardized intelligence test as
a precondition of employment. Id. at 425. Nevertheless, its holding was broad enough to
open a path to a flow of cases encompassing a conviction record. See Kohler, supra note 63,
at 1412-13 (describing the application of the Griggs principles to cases involving criminal
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whether the requirement is related to the job capability of an applicant.67
Found nowhere in the text of the Act, the doctrine of disparate impact was
conceived as a judicial recognition of the need to prevent pretextual discrimination and to absolve plaintiffs from having to prove an elusive intent
to discriminate.68
The doctrine of disparate impact found its extension into the area of
conviction-bar cases in Green v. Missouri Pacific Railroad Co.,69 where the
statistical data of a disproportionately high number of minority applicants
rejected on the basis of criminal records created the requisite disparate impact.70 A significant wrinkle in an otherwise straightforward application of
the theory is the defense of business necessity that exonerates employers
from liability even if the challenged practice has a disproportionately exclusionary effect on minorities.71 Despite the suggestions of the Equal Employment Opportunity Commission that employers avoid excluding exoffenders unless their convictions are genuinely related to their prospective
duties,72 the substantial deference that courts give to employers’ decisions,
67. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (quotation omitted). The
concept of “de facto discrimination” has been instrumental in challenging other facially
neutral employment barriers, such as a policy not to hire women with illegitimate children.
See Andrews v. Drew Mun. Separate Sch. Dist., 371 F. Supp. 27 (N.D. Miss. 1973); see
generally Kohler, supra note 63, at 1409-10 (describing the application of the concept of de
facto discrimination in various facially neutral policies). See Yifat Bitton, The Limits of
Equality and the Virtues of Discrimination, 2006 MICH. ST. L. REV. 593, 595, for an interesting argument that de jure discrimination of a group advances the group’s chances to access
the court system and obtain relief, while groups discriminated against de facto are often
deprived of access to the criminal system and, consequently, of any remedy.
68. See George Rutherglen, Disparate Impact Under Title VII: An Objective Theory
of Discrimination, 73 VA. L. REV. 1297, 1344-45 (1987) (labeling the theory of disparate
impact as an example of federal common law).
69. 549 F.2d 1158 (8th Cir. 1975).
70. Id. at 1159. Unfortunately, the statistical disparity in the minority groups’ conviction rates has not faded over the years. A recent study reported that about seventy percent
of prison entrants are either Black or Hispanic, and forty percent of them are recidivists.
Harrison & Schehr, supra note 3, at 42 (citation omitted).
71. See Rutherglen, supra note 68, at 1297 (explaining that after a plaintiff can
establish disparate impact, the burden shifts to an employer to prove business necessity justifying the disparate impact). In Green, business necessity had to relate to an applicant’s job
performance. 549 F.2d at 1159. The standard for finding a business necessity defense does
not seem to be as strict today. See Linda Lye, Title VII’s Tangled Tale: The Erosion and
Confusion of Disparate Impact and the Business Necessity Defense, 19 BERKELEY J. EMP. &
LAB. L. 315, 319-20 (1998) (describing the evolution of the doctrine through discussing
relevant key precedents and criticizing courts for lowering the threshold for finding business
72. See EEOC Policy Statement on the Issue of Conviction Records under Title VII
of the Civil Rights Act of 1964, Conviction Records (Feb. 4, 1987), available at The EEOC suggests the following
factors as bearing on the relationship between a conviction and employment: “1. The nature
and gravity of the offense or offenses; 2. The time that has passed since the conviction . . . ;
Reaching a Compromise
difficulties in proving causation and statistical disparity in treatment, and
lax standards for finding business necessity can make even a blanket restriction on ex-offenders’ employment impervious to attacks.73 Furthermore, a Title VII action will only protect active defenders of their rights
who find confidence, time, and resources to initiate such a suit—all of
which are often unavailable to ex-offenders. Accordingly, the reactive
character of Title VII protections diminishes its practical benefits for exoffenders.74 In addition, Title VII actions are limited to attacking the policies of private employers,75 and only with respect to minority applicants.76
Lastly, a hefty burden of proving business necessity, in theory the responsibility of employers, has to be shouldered by plaintiffs in practice.77
In spite of its shortcomings, Title VII has brought some success to
convicted job seekers. For instance, it served as a ground for unequivocal
and 3. The nature of the job held or sought.” Id. (citing Green, 549 F.2d at 1160). A similar
requirement of finding a “nexus” between the misconduct and an occupied position exists in
federal employment disciplinary actions under the Civil Service Reform Act of 1978, Pub. L.
No. 95-454, 92 Stat. 1111 (1978) (codified as amended in titles 5, 10, 15, 28, 31, and 39
U.S.C. (2000) and 42 U.S.C. (2000)). See Neal Miller, Criminal Convictions, “Off-Duty
Misconduct,” and Federal Employment: The Need for Better Definition of the Basis for
Disciplinary Action, 39 AM. U. L. REV. 869, 908 (1990) (arguing, with respect to determining
the nexus between employment and misconduct, that a “rebuttable presumption of rehabilitation” negating the nexus may be established after three years after the date of the last conviction).
73. See Lye, supra note 71, at 343-53, for a more thorough discussion of these encumbrances. The high watermark of the anti-disparate-impact attitude of the judiciary is
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), the decision that served as a catalyst for enacting the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e to 2000e-16 (2000)). See
Note, The Civil Rights Act of 1991: The Business Necessity Standard, 106 HARV. L. REV.
896, 897-99 (1993) [hereinafter The Civil Rights Act of 1991] (discussing the legal significance of Wards Cove Parking Co. in the business necessity jurisprudence and the history
behind the enactment of the Civil Rights Act of 1991).
74. See James R. Todd, “It’s Not My Problem”: How Workplace Violence and
Potential Employer Liability Lead to Employment Discrimination of Ex-Convicts, 36 ARIZ.
ST. L.J. 725, 747-49 (2004) (discussing insufficiency of reactive, and the need for proactive,
approach to employment discrimination).
75. Similar attacks on public employers must be reviewed “on due process grounds
under the 5th and 14th Amendments.” Nicholas G. Miller, Insurance for Ex-Offender Employees: A Proposal, 28 STAN. L. REV. 333, 342 n.48 (1975).
76. See Sheri-Ann S.L. Lau, Employment Discrimination Because of One’s Arrest
and Court Record in Hawai‘i, 22 U. HAW. L. REV. 709, 723 (2000) (emphasizing that only
minorities can bring a Title VII action). But cf. McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273 (1976) (holding that two white employees who were fired for an alleged theft at
their place of employment stated a prima facie case of discriminatory treatment under Title
VII when the employer arbitrarily decided to keep a black employee, the third participant in
the alleged theft); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) (permitting
white residents’ challenge of the landlord’s racially discriminatory practices).
77. See Kohler, supra note 63, at 1416 (observing that because most employers do
not identify the criteria germane to job performance, proving the relevance of a certain requirement to a specific job becomes the plaintiffs’ concern).
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prohibition of employment discrimination on the basis of records of arrest.78
Attempting to rectify some of the above problems with the doctrine, Congress enacted the Civil Rights Act of 199179 with its strong pro-plaintiff
policy mandate. Unfortunately, political pressures at its inception, and the
drafters’ desire to strike a political compromise, resulted in the Act’s ambiguity, opening it up for broad judicial interpretation.80 In fact, the text of the
Act provided a reader with no guidance as to the scope of business necessity, suggesting only—in a circuitous way—that to avoid liability, employers
must “demonstrate that the challenged practice is job related for the position
in question and consistent with business necessity.”81 Understandably, the
courts’ interpretation of this nebulous standard has varied across the board,
with some of the decisions straying quite far away from the noble legislative
intent of the Act.82 As a result, the Act, too, has failed to provide exoffenders with a reliable mechanism of protection.83
2. Equal Protection and Due Process Challenges
Limited relief to ex-offenders is also available through the application
of the Fourteenth Amendment Equal Protection Clause.84 Contrary to the
challenge based on Title VII, the action brought on equal protection grounds
must relate to public employment by state or local governments and does
not have to focus on the applicant’s race or other suspect category.85
78. Gregory v. Litton Sys., Inc., 316 F. Supp. 401 (C.D. Ca. 1970). Nevertheless, an
employer may still use the conduct underlying the arrest for excluding an applicant from
employment. See EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Sept. 7, 1990), 1990
WL 1104708, at *4.
79. 42 U.S.C. §§ 2000e to 2000e-16 (2000).
80. See The Civil Rights Act of 1991, supra note 73, at 896-97 (analyzing the failings of the Act and the reasons behind them).
81. 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2000).
82. Compare Nash v. Consol. City of Jacksonville, 895 F. Supp. 1536, 1545 (M.D.
Fla. 1995) (requiring a compelling business justification based on the prediction of an applicant’s job performance), with Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118-19 (11th Cir.
1993) (announcing that, in part, a questioned practice must be “necessary to meeting a goal
that, as a matter of law, qualifies as an important business goal for Title VII purposes”), and
Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 331-32 (N.D. Cal. 1992) (requiring that a
practice is manifestly related to the employment and significantly serves valid employment
goals, citing to both Wards Cove and Griggs). See generally Lye, supra note 71, at 348-53
(categorizing various business necessity interpretations into four groups).
83. See cases cited supra note 82; see generally Lye, supra note 71, at 361 (“[t]he
cases interpreting the post-1991 Act business necessity standard illustrate the extensive confusion shrouding the disparate impact model”).
84. U.S. CONST. amend. XIV, § 1.
85. See Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977) (concluding that a city
ordinance disqualifying individuals with certain convictions from obtaining a driver’s license
violated the Equal Protection Clause); Butts v. Nichols, 381 F. Supp. 573, 581-82 (S.D. Iowa
Reaching a Compromise
The Equal Protection Clause generally prohibits unreasonable and arbitrary discrimination against one person in favor of another.86 Since a
criminal conviction is not a suspect classification, nor is the right to employment a fundamental right,87 courts analyze ex-offenders’ claims of employment discrimination under a rational basis test.88 And because this test
is satisfied upon showing of a rational relation of the challenged practice to
a “legitimate state purpose or interest,”89 it is usually met relatively easily,
save some instances of blanket exclusions of ex-offenders.90 Thus, even
though equal protection challenges can bring occasional success to exoffenders, they are not a reliable source for the systematic enforcement of
ex-offenders’ rights.91
Similarly, substantial obstacles arise if an ex-offender chooses to challenge the governmental regulation on the basis of the Due Process Clause.92
Because procedural due process only dictates adequate procedures for depriving individuals of an interest in “life, liberty, or property,”93 exoffenders can potentially avail themselves only of substantive due process
1974) (invalidating as violative of the Equal Protection Clause an Iowa statute barring exoffenders from all civil service positions); see also Kohler, supra note 63, at 1425 (describing ex-offenders’ actions under the Equal Protection Clause).
86. See cases described supra note 85; Kohler, supra note 63, at 1417-18.
87. Schanuel v. Anderson, 546 F. Supp. 519, 524 (S.D. Ill. 1982) (citation omitted).
However, even for Equal Protection purposes, courts may review the legislation disqualifying ex-offenders under the strict scrutiny test if the regulation proves to have a disparate
effect on a suspect category and a plaintiff presents the evidence of an employer’s actual
discriminatory intent. Washington v. Davis, 426 U.S. 229 (1976); see also Saxonhouse,
supra note 65, at 1615 n.109 (noting that unlike with the theory of disparate impact, plaintiff
alleging unequal treatment and desiring to obtain a strict scrutiny review must produce the
evidence of an employer’s actual discriminatory purpose).
88. See Furst v. N.Y. City Transit Auth., 631 F. Supp. 1331, 1336 (E.D.N.Y. 1986);
Smith v. Fussenich, 440 F. Supp. 1077, 1079 (D. Conn. 1977); Butts, 381 F. Supp. at 578.
89. Furst, 631 F. Supp. at 1336.
90. See, e.g., People v. Lindner, 535 N.E.2d 829, 833 (Ill. 1989) (invalidating the
categorical revocation of a sex offender’s driver’s license on equal protection grounds);
Kindem v. City of Alameda, 502 F. Supp. 1108, 1113-14 (N.D. Cal. 1980) (holding that
general exclusion of ex-offenders from civil service ran afoul of the Equal Protection
Clause); Smith, 440 F. Supp. at 1080-81 (invalidating a state ban on employment of exoffenders in the capacity of security guards or private detectors); see generally Saxonhouse,
supra note 65, at 1621 (“[u]ntailored statutes and license denials generally do not fare well in
91. See Aukerman, supra note 64, at 18, 39-43, 47-51, 65-69, 85-87 (surveying
successful equal protection challenges to occupational restrictions, concluding that courts
review such challenges under the “rational basis with bite” test, and proposing to treat exoffenders as a “somewhat suspect” class); Saxonhouse, supra note 65, at 1619-23 (giving an
overview and analysis of equal protection cases with both successful and unsuccessful outcomes).
92. U.S. CONST. amend. XIV, § 1.
93. Id.
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in order to obtain a meaningful relief from collateral disabilities.94 Substantive due process guarantees that the government cannot infringe on an individual’s “fundamental” liberty interest “unless the infringement is narrowly
tailored to serve a compelling state interest.”95 If the interest involved is
less than “fundamental,” the challenged regulation will not run afoul of substantive due process as long as it is “rationally connected to a governmental
interest.”96 It is thus not surprising that most ex-offender-disqualifying regulations are upheld either because they do not involve any liberty interest or
because they are rationally related to legitimate government goals.97 Finally, employment discrimination rarely concerns state action, and, therefore,
would rarely implicate the Due Process Clause.
B. Approach to Employment Discrimination against Ex-Offenders in Michigan
In the motley landscape of American jurisdictions, Michigan represents one of the more employer-friendly approaches to claims of discrimination by ex-offenders. This is so despite the oft-proclaimed commitment of
the state to remove barriers to former offenders’ reintegration into society.98
To be sure, the state is far from being alone in this stance since few jurisdic-
94. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989) (separating due process into substantive and procedural, and setting forth the differences between the two); see generally Deborah N. Archer & Kele S. Williams, Making
America “The Land of Second Chances”: Restoring Socioeconomic Rights for Ex-Offenders,
30 N.Y.U. REV. L. & SOC. CHANGE 527, 552-53 (2006) (noting that procedural due process
regulates only the means of depriving an individual of a protected interest).
95. Reno v. Flores, 507 U.S. 292, 302 (1993).
96. Id. at 303.
97. See, e.g., Delong v. Dep’t of Health & Human Servs., 264 F.3d 1334, 1341-43
(Fed. Cir. 2001) (concluding that an interest in continued federal employment is not fundamental and thus upholding the absolute ban on employing convicted individuals for the work
with Indian children because the ban is rationally related to the government’s interest in
preventing abuse of Indian children); Darks v. City of Cincinnati, 745 F.2d 1040, 1044 (6th
Cir. 1984) (upholding the blanket policy of denying dance hall licenses to individuals convicted of a felony as rationally related to governmental interests); Bolden v. City of New
York, 256 F. Supp. 2d 193, 195 (S.D.N.Y. 2003) (upholding the statute dismissing felons
from employment with the city because public officers lose any property right in their jobs
upon a felony conviction); see generally Archer & Williams, supra note 94, at 552 (concluding that due process rarely provides relief to ex-offenders). But see Kohler, supra note 63, at
1426 (giving an optimistic perspective on the power of due process to improve ex-offenders’
98. See Froede v. Holland Ladder & Manuf. Co., 523 N.W.2d 849, 852 (Mich. Ct.
App. 1994) (relying on policy toward ex-offenders’ rehabilitation in restoring a former felon’s rights to serve on a jury); Rios v. Dep’t of State Police, 469 N.W.2d 71, 73 (Mich. Ct.
App. 1991) (holding in favor of an applicant denied a detective’s license by citing to the
state’s goal to assist ex-offenders in their reassuming responsibilities of citizenship).
Reaching a Compromise
tions have enacted effective measures to protect former offenders.99 The
“growing, comfortable majority” of the states either do not actively regulate
the use of criminal records in hiring decisions or regulate only in very limited instances.100
1. Private Employment
Private employment of former offenders in Michigan is almost entirely unregulated. The only restraint against the complete freedom of private
employers to engage in records-based discrimination is the prohibition
against using a record of a “misdemeanor arrest, detention, or disposition
where a conviction did not result.”101 Notably, the statute on its face excludes from its protective ambit the records of an arrest on felony charges.102
Naturally, people whose records have been set aside under the state’s expungement statute,103 or who have received executive pardons,104 are authorized not to disclose their previous convictions and are, therefore, no longer
99. Among the most proactive are the statutes in New York, Wisconsin, Hawaii, and
Minnesota. For a more detailed description of these statutes, see infra notes 209-12 and
accompanying text. Connecticut too has enacted a rather strong statute, but has not received
as wide acclaim as the previous four have. See CONN. GEN. STAT. ANN. § 46a-80 (West
2004) (prohibiting denial of employment on the basis of arrest and conviction records unless
a direct relationship between the previous offense(s) and employment can be established in
light of three suggested factors).
100. Leavitt, supra note 15, at 1289. See id. at 1288-98 for a more thorough discussion of various jurisdictional approaches to the subject.
101. Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2205a(1) (2000). Indeed, even individuals whose employment interest was adversely affected by an employer’s
use of a misdemeanor arrest record at times face insurmountable barriers in proving causation in their cases. See, e.g., Quatrine v. Shell Oil Co., No. 87-1422, 1988 WL 54093, at *3
(6th Cir. May 31, 1988) (dismissing the case of a truck driver accused by his employer of
larceny and later acquitted, and holding that nothing in the pertinent provision of the ElliottLarsen Act prohibited the employer “from obtaining an arrest record in connection with its
investigation of a theft by a [sic] employee against that employer”).
102. MICH. COMP. LAWS § 37.2205a(1) (2000).
103. Id. § 780.621. The statute provides for setting aside an applicant’s sole conviction provided that five years have passed since the day of the conviction or an applicant’s
release and the conviction was not for a crime or attempt to commit a crime punishable by a
maximum penalty of life imprisonment, or certain criminal sexual conduct crimes. Id. §
780.621(2)-(3). Nor can the statute be utilized to set aside traffic offenses. Id. § 780.621(3).
104. The power to grant executive pardons is given to the Governor, who, after receiving a recommendation of the Parole Board, may grant or refuse the pardon. MICH.
CONST. art. 5, § 14. Since 1969, only thirty-three pardons have been granted in Michigan.
(2007), available at
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faced with disqualifications.105 But those who do not fit into these narrow
exceptions are subject to unlimited discrimination stemming from biased
misperceptions of cautious employers.106
2. Licensed Occupations and Public Employment
Ex-offenders’ access to a host of professions in Michigan is further
constricted further by the state’s requirement of professional licensure in
many occupational fields.107 Along with such well-recognized areas subject
to state control as medicine, law, and positions of financial responsibility,108
applicants wishing to enter multiple other professions—from barbers to
dead animal dealers—must satisfy the character component of the respective statutes.109 To meet the standard, applicants are usually required to be
105. With an exception of offenses requiring registration under the provisions of the
Sex Offenders Registration Act, MICH. COMP. LAWS § 28.722, the statute authorizes successful expungement applicants to state that they have never been convicted. Id. § 780.622(1);
see also People v. Van Heck, 651 N.W.2d 174, 178-79 (Mich. Ct. App. 2002) (holding that a
Michigan pardon “releases the punishment and blots out of existence the guilt, so that in the
eye of the law, the offender is as innocent as if he had never committed the offense”) (quotation omitted). But see Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of
a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1721 (2003)
[hereinafter Love, Starting Over with a Clean Slate] (noting that a state pardon ordinarily
will not remove disabilities imposed by federal laws).
106. Needless to say, the number of people exposed to this kind of discrimination in
Michigan is great. In 2004, 48,883 persons were imprisoned in the State’s forty-three prisons and ten camps. MICHIGAN DEPARTMENT OF CORRECTIONS, 2004 ANNUAL REPORT 29
(2004), available at [hereinafter MDOC 2004 REPORT]. In addition, about 18,000 people were released on parole, and about 54,000 more were under probation supervision. Id. Majority of
these people will be discriminated against by employers. Statistics gathered in the 1990s in
Los Angeles, for example, confirmed that over forty percent of employers unconstrained by
legal limitations would “definitely” abstain from hiring ex-offenders. Harry J. Holzer et al.,
The Effect of an Applicant’s Criminal History on Employer Hiring Decisions and Screening
Practices: Evidence from Los Angeles (Dec. 2004) (unpublished research paper, National
Poverty Center), available at Worse yet,
even in the event that employers do not conduct a background check, they are more prone to
engage in “statistical discrimination” resulting in “attributing the perceived attributes of
one’s readily definable group to the individual and making decisions accordingly, in order to
minimize the risk of hiring an ex-offender.” Steven Raphael, Should Criminal History Records Be Universally Available?, 5 CRIMINOLOGY & PUB. POL’Y 515, 518 (2006).
107. See Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. CHI. L. REV. 6
(1976), for a thoughtful criticism of the present licensing system, and the proposal that applicants be registered for the occupation automatically and the responsibilities of supervising
the profession’s members be conferred on an independent body not associated with the occupation itself.
108. MICH. COMP. LAWS §§ 333.16174, 600.934, 339.725 (2001) (licensing requirements for health specialists, lawyers, and public accountants respectively).
109. Id. § 339.1105 (barbers), id. § 287.661 (dead animal dealers). Among other
areas of state regulation are foresters, id. § 339.2103; real estate brokers and salespersons, id.
Reaching a Compromise
of “good moral character,” a phrase vaguely defined as a “propensity on the
part of the person to serve the public in the licensed area in a fair, honest,
and open manner.”110
Exactly what this elocution amounts to is unclear even in theory, although it is generally recognized that a record of a conviction cannot serve
as the sole basis for license denial.111 To be sure, in its attempt to curtail
unjust application of licensing laws to former criminals, Michigan’s Licensing of Former Offenders Act112 prohibits the discriminatory use of arrest
records and records of reversed or vacated convictions, convictions for offenses not entailing jail punishments, and convictions “unrelated to the person’s likelihood to serve the public in a fair, honest, and open manner.”113
Moreover, the Act mandates that upon denying a license, the administrative
body furnish to an applicant a written explanation of its decision, appeal to
which can be taken before the same administrative board or in one of the
state’s circuit courts.114
In practice, however, the contours of the good moral character inquiry
are far from being ex-offender-friendly.115 The overall elusiveness of the
§ 339.2505; insurance producers, id. § 500.1204; insurance solicitors, id. § 500.1214; adjusters, id. § 500.1224; insurance counselors, id. § 500.1234; private detectives, id. § 338.826;
plumbers, id. § 338.3527; boxing promoters, id. § 338.3633; collection agents, id. § 339.904;
employment or consulting agents, id. § 339.1004; cosmetologists, id. § 339.1207; electrologists, id. § 339.1208; manicurists, id. § 339.1209; estheticians, id. § 339.1210; individuals
practicing natural hair cultivation, id. § 339.1210a; hearing aid dealers, id. §339.1305; individuals engaging in mortuary science, id. § 339.1806; mechanical contractors, id. § 338.976;
residential builders, id. § 339.2404; casino gaming organizations representatives, id. §
432.207c; and individuals involved in using dogs and cats for research, id. § 287.383.
110. Id. § 338.41. After all, much enigma surrounds drawing the magic line between
a good and a bad moral character. See Donald R. Stacy, Limitations on Denying Licensure to
Ex-Offenders, 2 CAP. U. L. REV. 1, 5-6 (1973) (suggesting, instead of the current system, the
automatic granting of licensure to ex-offenders).
111. See Rios v. Dep’t of State Police, 469 N.W.2d 71 (Mich. Ct. App. 1991) (upholding the denial of the plaintiff’s detective license not on the basis of the conviction itself,
but because of the underlying conduct suggestive of the applicant’s dishonesty and deceit).
112. MICH. COMP. LAWS § 338.43 (2007); see Miriam J. Aukerman, Barriers to
Reentry: Legal Strategies to Reduce Recidivism and Promote the Success of Ex-offenders,
2003 MICH. CRIM. L. ANN. J. 4, 6 (describing the Licensing of Former Offenders Act as one
source of ex-offenders’ protection in Michigan).
113. MICH. COMP. LAWS § 338.43(1)(c) (2007).
114. Id. §§ 338.45-46.
115. See Bruce E. May, The Character Component of Occupational Licensing Laws:
A Continuing Barrier to the Ex-Felon’s Employment Opportunities, 71 N.D. L. REV. 187,
197 (1995) (characterizing statutes styled in terms of good moral character as “the second
greatest barrier to the ex-felon obtaining an occupational license” after the statutes expressly
excluding ex-felons from licensure). But see Kenneth Olson & Richard A. Pasewark, Licensing Restrictions for Criminal Offenders, 5 J. OFFENDER COUNSELING SERVS. & REHAB.19, 19
(1980) (concluding that although almost all occupations restrict access to ex-offenders based
on moral character, these restrictions end in denials of licenses solely based on a criminal
record extremely rarely).
Michigan State Law Review
[Vol. 2007:1051
standard, the zealous vigilance of decisionmakers on guard of the chastity of
their profession, the lack of express guidelines for measuring the relevance
of past convictions to the licensed activity, and the omission of rehabilitation-suggestive factors from the agency’s consideration usually defeat success of aspiring ex-offenders.116 As one commentator correctly notes, in the
face of the rising outsourcing of low-skill positions and multiplying licensure requirements in technical and professional skills spheres, ex-offenders’
prospects of gaining satisfactory employment grow increasingly dimmer.117
These problems are exacerbated by intolerance towards a past criminal
record in the public employment sector.118 For instance, the policy of the
Michigan Department of Corrections is to reject, in a blanket-like manner,
any candidates with a felony conviction, any controlled substance violation,
as well as applicants convicted of a misdemeanor less than one year ago,
and even those with misdemeanor or felony charges pending.119 Even the
Michigan law enforcement standards, which are usually higher than standards used in other types of public employment, are less stringent: they disqualify only ex-felons.120 The situation is marginally better in the Michigan
public schools that reject applicants on the basis of only enumerated convictions.121 Finally, the Michigan Department of Human Services promises to
116. See Archer & Williams, supra note 94, at 535-39 (pointing to these and other
drawbacks of licensing laws, such as their essentially retributive nature, their especially
devastating effects on offenders who are unable to use the skills they acquired before or
during their prison terms, and hurdles imposed on ex-offenders vicariously through the loss
of driving privileges); see also Walter Matthews Grant et al., The Collateral Consequences
of a Criminal Conviction, 23 VAND. L. REV. 929, 1009-10 (1970) (criticizing “good moral
character” requirement for its nebulous relationship to some of the regulated professions and
for creating a fertile ground for exclusion of ex-offenders).
117. See Marlaina Freisthler & Mark A. Godsey, Going Home to Stay: A Review of
Collateral Consequences of Conviction, Post-Incarceration Employment, and Recidivism in
Ohio, 36 U. TOL. L. REV. 525, 539 (2005) (supporting an ex-offender anti-discrimination bill
currently pending in the Ohio legislature).
118. As one commentator put it, the unwillingness of a state government to give exoffenders a second chance at public employment and licensing is “a sad commentary on the
state’s opinion of its ability to reform offenders.” Barry M. Portnoy, Employment of Former
Criminals, 55 CORNELL L. REV. 306, 317 (1970).
119. Michigan Department of Corrections, Corrections Officer Selection and Probation Process (2006), (last
visited Feb. 1, 2008).
120. See Michigan Commission on Law Enforcement Standards, Employment Standards for Michigan Law Enforcement Officers, Interestingly, however, the employment standards require law enforcement applicants to disclose even instances of previous arrests not
resulting in a conviction and of expunged convictions. Id.
121. MICH. COMP. LAWS § 380.1539b (2005) (prohibiting schools from employing
public school teachers convicted of a set number of enumerated offenses involving mainly
morally compromising offenses related to minors). The statute mandates school employees
Reaching a Compromise
consider each applicant’s individual criminal record before making a hiring
decision, focusing on the length of time since the conviction date, the relation of a conviction to perspective employment, and the sincerity of an applicant in disclosing the conviction.122 However noble the spirit of the policy, though, it may prove to be rather ineffective in the absence of welldefined factors for measuring direct relationship and of the sanctions enforcing the prescribed course. Taken together, these regulations amount to
obstacles that can be drastically out of proportion with the long-faded culpability of ex-offenders.
3. Accessibility of Criminal Records in Michigan
As discussed previously, the current legal system in Michigan does
not place on employers an affirmative obligation for conducting a criminal
background search, except for some limited instances.123 Yet, the uncertainty of the negligence hiring standards, the recent drastic rise in workplace
violence, and the enhanced post-9/11 willingness of employers to gain a
deeper understanding of prospective employees’ backgrounds lead thousands of employers into the market of criminal records search.124 Unlike
some states,125 Michigan does not provide employers with free and unreto report any newly-brought qualified charges to the Michigan Department of Education
within fifteen days. Id. § 380.1230d.
122. Michigan Department of Human Services, Criminal History Files Search by
Fingerprint(s) 1 (Jan. 1, 2006),
123. See discussion supra Section I.B. The Michigan legislature has recently imposed an affirmative requirement of conducting a criminal background check in the
healthcare sphere embracing nursing homes, county medical care facilities, hospitals with
swing bed services, Medicare-certified home health agencies, facilities for mentally retarded,
and psychiatric facilities and inpatient services. H.R. 5168, 93d Leg., Reg. Sess. (Mich.
2006); H.R. 5448, 93d Leg., Reg. Sess. (Mich. 2006); S.B. 621, 93d Leg., Reg. Sess. (Mich.
2006); S.B. 622, 93d Leg., Reg. Sess. (Mich. 2006); H.R. 4057, 91st Leg., Reg. Sess. (Mich.
2002). See Aukerman, supra note 112, at 5 (characterizing as “draconian” the statutory
barriers to ex-offenders’ employment created by the recent Michigan Nursing Home law).
124. See Holzer et al., supra note 106, at 23-26 (presenting the statistical evidence
from Los Angeles and explaining the reasons for an inclination of employers to conduct
background checks on prospective recruits). See also Louis P. DiLorenzo, An Emerging
Trend in State Employment Law—Employers’ Responsibility to Conduct Employment Background Checks, A.L.I.-A.B.A., June 3-5, 2004, at 359 (cataloguing recent developments in
states’ approaches to background checks, and endorsing their use).
125. For example, Georgia law, GA. CODE ANN. § 35-3-34.1 (Supp. 2003), authorizes
employers’ free access to a “first offender’s record of arrests, charges, or sentences for certain sexual offenses” upon the offender’s application to certain sensitive positions. Joseph
Larkin, Georgia Bureau of Investigation: Provide Records Related to the Prosecution of
Certain Offenses to Potential Employers Involved in Caring for Minor Children, the Elderly,
or the Mentally Afflicted, 20 GA. ST. U. L. REV. 179, 183-84 (2003) (describing the recently
enacted law as striking the correct balance between the utility of criminal records, protection
of vulnerable groups, and employees’ status as first-time offenders). Free records have also
Michigan State Law Review
[Vol. 2007:1051
stricted access to its criminal database, with the significant exceptions of its
Offender Tracking Information System126 and the Michigan Sex Offender
Registry.127 The records provided by these two systems somewhat overlap
and contain only crimes grave enough to warrant either registration as a sex
offender or serving a term in the Department of Corrections.128 To fill this
void, the Michigan State Police, for a modest fee of ten dollars, provides
interested employers with the records of one’s misdemeanors and felonies,
as well as arrests.129 Along with the commercial efforts of the Michigan
State Police, many other out-of-state providers are also in the market of
background searches.130 Unfortunately, in this sea of information, the accubecome recently available to Michigan nursing homes and healthcare facilities by virtue of a
pilot U.S. Department of Health and Human Service-funded program aimed at developing a
“comprehensive background-check system” for these specific needs. Press Release, Michigan State University Newsroom, $5 million Grant to Fund Program to Improve NursingHome
at Likewise, non-profit agencies can
receive fee-waived Michigan record checks for any of their volunteers. See Michigan State
Police, ICHAT Offers Fee-Waived Michigan Criminal History Background Checks to NonProfit Charitable Agencies,
126. Offender Tracking Information System, Michigan Department of Corrections, (last visited Feb. 1, 2008). This registry contains
criminal records of people who have been or currently are under the supervision of the Michigan Department of Corrections, serving their terms for either misdemeanor or felony offenses. Id.
127. Michigan State Police, Michigan Public Sex Offender Registry, (last visited Feb. 1, 2008). This registry is a much more detailed compilation of records tracking individuals convicted of certain sexual offenses and
required to register under the Sex Offender Registration Act, MICH. COMP. LAWS §§ 28.72128.731 (2004 & Supp. 2006). Apart from these two services, some courts also provide free
and unrestricted access to their computerized records containing the entries of individuals’
arrests, convictions, and sentencing results. See, e.g., Oakland County, Michigan, Oakland
County District Court Case Search, (last visited Feb.
1, 2008).
128. See Offender Tracking Information System, supra note 126 (containing information only on individuals who have been sentenced to serve a term in the Michigan Department of Corrections); Michigan Public Sex Offender Registry, supra note 127 (encompassing only individuals convicted of sex-related crimes).
129. Michigan State Police, Internet Criminal History Access Tool, (last visited Feb. 1, 2008). Michigan is one of the ten states that does
not allow for expungement or sealing of records of arrest. Debbie A. Mukamal & Paul N.
Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30
FORDHAM URB. L.J. 1501, 1509-10 (2003).
130. See, e.g., Background Ferret, Michigan Criminal Records Background Checks,
127768_products.htm (last visited Feb. 1, 2008) (providing information about state convictions at the price of $12.95-$24.95, depending on the time span and depth of investigation);, Michigan Criminal Records Search, http://www.criminal-
Reaching a Compromise
racy of the distributed criminal records leaves much to be desired, yet the
mistakes may be of tragic consequences to the aggrieved.131
Despite its drawbacks,132 the law of negligent hiring serves legitimate
purposes that could not be achieved through the system of workers’ compensation or the doctrine of respondeat superior—prevention of workplace
violence and provision of meaningful compensation to its victims.133 While
the negligent hiring doctrine in Michigan is not nearly as employer-averse
as in some jurisdictions,134 its indeterminate scope, potentially grim consequences, and dangers of jury hindsight—all compounded by other factors (last visited Feb. 1, 2008) (furnishing a report
on any convictions, arrests, and warrants that occurred in and outside of Michigan for a price
of $26.95-$39.95); Accurate Credit Bureau, Michigan Criminal Records Search, (last visited Feb. 1, 2008)
(providing a statewide convictions report for a price of $27.50).
131. See Letter from Community Legal Services, Inc. to Richard A. Herling, Deputy
at (noting, on the basis of evidence from Pennsylvania, that errors in criminal records are pervasive and call for an urgent corrective action).
132. One paradox of the negligent hiring doctrine is the unparalleled burden that it
places on employers who are usually not well-versed in matters of criminal justice. Indeed,
this burden is much higher than the burden carried by parole boards and professionals responsible for the placement of ex-offenders in the community, who are usually either entirely
immune from liability or have much less stringent duties with respect to their decisions. See
Haerle, supra note 28, at 1320 (noticing this paradox).
133. While the majority of negligent hiring cases involve violent acts, the rationale of
the doctrine applies equally to economic crimes. See, e.g., Pruitt v. Pavelin, 685 P.2d 1347,
1354 (Ariz. Ct. App. 1984) (negligent hiring liability for hiring a convicted real estate agent
who defrauded the plaintiff); see also Katrin U. Byford, The Quest for the Honest Worker: A
Proposal for Regulation of Integrity Testing, 49 SMU L. REV. 329, 361 (1996) (“Nothing in
the nature of negligent hiring as a theory of liability would confine its application strictly to
those circumstances where the plaintiff sustained physical injury rather than economic damage.”). Although possible in theory, the author has not located any Michigan cases imposing
negligent hiring liability for economic losses.
134. Compare Michigan negligent hiring cases discussed supra notes 19, 28, with
Bryant v. Livigni, 619 N.E.2d 550, 553 (Ill. App. Ct. 1993) (imposing negligent retention
liability by imputing to the management the knowledge of other store employees about their
co-worker’s prior violent acts), and Ponticas v. K.M.S. Invs., 331 N.W.2d 907 (Minn. 1983)
(imposing negligent hiring liability on the apartment complex that, upon hiring, failed to
investigate the criminal background of the complex manager who later assaulted the tenant);
see generally Charles A. Odewahn & Darryl L. Webb, Negligent Hiring and Discrimination:
An Employer’s Dilemma?, 40:11 LAB. L.J. 705, 705-09 (1989) (discussing early aggressive
negligent hiring cases from other states).
Michigan State Law Review
[Vol. 2007:1051
disfavoring employment of ex-offenders135—militate against employers’
hiring applicants with record of past transgressions.136 These side effects of
the doctrine create a disproportionate and unfair punishment of ex-offenders
and are at odds with the major tenets of penology.137 And although Michigan’s overall treatment of ex-offenders is not the worst in the country,138
unique economic difficulties of the state, its tight employment market, and
high crime rates add urgency to the problem as the state is struggling with
the financial burdens of such an unforgiving system of justice.139 Under
these circumstances, a holistic model of well-coordinated statutory
measures140 is necessary to prevent an ever-increasing number of Michigan
ex-offenders141 from facing an “internal exile.”142
135. Along with the heavy stigma of a criminal conviction, ex-offenders are usually
set back by virtue of their poor education and lack of “soft skills,” such as general presentability, effective oral communication, and commitment to showing up at work on time and
ready to learn. Raphael, supra note 106, at 517. To make matters worse, seventy percent of
all prisoners function at the two lowest literacy levels, see Second Chance Act of 2005, H.R.
1704, 109th Cong. § 2(22) (2005), eighty-four percent of the prison population has a history
of drug or alcohol abuse, and the rate of mental diseases among prisoners is four times as
high as that in the general population. Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. REV. 255, 259 (2004).
136. According to one survey, as many as sixty-five percent of employers would not
hire an ex-convict. See Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 AM. U.
L. REV. 65, 133 n.313 (2004) (describing a survey conducted in five major American cities)
(citation omitted). But see Holzer et al., supra note 106, at 7 (reporting the results of the
more optimistic survey in Los Angeles where about thirty-five percent of employers would
be willing to hire ex-offenders depending on the nature of a crime).
137. See Andrew von Hirsch & Martin Wasik, Civil Disqualifications Attending
Conviction: A Suggested Conceptual Framework, 56 CAMBRIDGE L.J. 599, 605 (1997) (cautioning against relegating ex-offenders to the status of “second-class citizenship” and emphasizing the importance of the penology rule of imposing disqualifications “parsimoniously,
with appropriate restrictions of purpose, duration, and scope”).
138. According to one study, Michigan is ranked ninth on a list of the most progressive states based on the number of legal barriers to ex-offender reentry that a state’s laws and
REENTRY]. Yet, the study was probably too hasty to praise the State’s advancements: Just
recently, Michigan adopted a provision permanently disqualifying ex-felons from jury service. MICH. COMP. LAWS § 600.1307a(1)(e) (Supp. 2006) (amended by the Act of Dec. 30,
2002, Pub. L. No. 739, 2002 Mich. Legis. Serv. 739 (West) (effective Oct. 1, 2003)).
139. See discussion supra note 106 for information on the number of Michigan prisoners, parolees, and probationers. The Department of Corrections’ appropriations in 2004
was 1.7 billion dollars, MDOC 2004 REPORT, supra note 106, at 29, compared with 1.6 billion as recently as in 2000. THE MICHIGAN DEPARTMENT OF CORRECTIONS, 2000 ANNUAL
140. The “holistic perspective” on ex-offender discrimination is especially important,
and is to be contrasted with the “compartmentalization” of efforts to eradicate ex-offender
discrimination. Michael Pinard, An Integrated Perspective on the Collateral Consequences
Reaching a Compromise
A. Court-Issued Orders Restoring Ex-Offenders’ Rights
The concept of the individualized restoration of ex-offenders’ rights
originated in the 1940s in the context of sealing or expunging conviction
records for youthful offenders143 and was later extended to employment disqualifications against all ex-offenders.144 Building on these principles, New
York has been in the vanguard of states that implemented the idea of rehabilitation certificates, which limited the discretion of employers in hiring
applicants with tarnished backgrounds.145 Its lead has been followed by
several states, but Michigan is not one of them.146
Yet, the idea, if slightly modified, merits the attention of Michigan
legislators. Without interfering with valid goals of law enforcement in arof Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86
B.U. L. REV. 623, 623 (2006). In the absence of good coordination between different
measures protecting ex-offenders, efforts of one group may cancel out the efforts of another,
thus reducing the overall efficiency of an ex-offender program in a state. Id; see also infra
notes 241, 267.
141. Without any mechanism for removal of records, the number of people with
criminal records is certain to increase. See Pager, supra note 12, at 507. This effect is multiplied by the activities of commercial data providers, who are prone to disseminate the records even after they are officially sealed. See EMPLOYMENT SCREENING FOR CRIMINAL
available at (reporting that fiftyseven percent of the commercial criminal history providers would be willing to search their
records beyond the statutory cut-off point).
142. The term is borrowed from Nora V. Demleitner, Preventing Internal Exile: The
Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL’Y REV.
153, 153 (1999), and aptly describes the “exclusion of ex-offenders from . . . the labor market . . . [that] parallels the effect of restrictions on the ex-offender’s right to contract in the
nineteenth and twentieth centuries.” Id. at 156.
143. See Love, Starting Over with a Clean Slate, supra note 105, at 1709 (exploring
the origins of the concept of expungement).
144. For an early proposal of the idea of issuing a Certificate of Rehabilitation to
facilitate employment of ex-offenders, see Michael Meltsner et al., An Act to Promote the
Rehabilitation of Criminal Offenders in the State of New York, 24 SYRACUSE L. REV. 885
145. The New York statute authorizes two kinds of certificates. First, the State may
issue a Certificate of Relief from Disabilities, N.Y. CORR. LAW § 701 (McKinney 2003),
granted either by the sentencing court, id. § 702, or by the board of parole, id. § 703. Second,
the State has the power to grant a Certificate of Good Conduct, which is issued after a certain
period of rehabilitation varying in length from one to five years depending on the seriousness
of the offense, id. § 703a-b. While both certificates grant ex-offenders relief against absolute, conviction-based licensing or employment disqualifications and provide the presumption of rehabilitation, they do not foreclose review of an underlying offense in employment
146. To be precise, five states have followed—to a greater or lesser degree—New
York’s example. See ROADBLOCKS TO REENTRY, supra note 138, at 10 (listing—in addition
to New York—Arizona, California, Illinois, Nevada, and New Jersey).
Michigan State Law Review
[Vol. 2007:1051
chiving criminal records,147 rehabilitation certificates create for eligible applicants a presumption of rehabilitation pertinent to finding good moral
character in licensing decisions.148 They also demand a more personalized
approach to private and public employment decisions. An individualized
risk assessment eliminates automatic disqualifications of ex-offenders from
employment and other benefits while leaving to employers the necessary
discretion149 unclouded by prejudice.150 The certificate thus helps to replace
blanket restrictions on ex-offenders’ employment with optional, utilitarian
147. Evaluations of the value of criminal records vary from laudatory to skeptical.
Some view a conviction as “the most accurate tool for predicting whether a person is dishonest or has a propensity for violence.” Monica Scales, Employer Catch-22: The Paradox
Between Employer Liability for Employee Criminal Acts and the Prohibition Against ExConvict Discrimination, 11 GEO. MASON L. REV. 419, 420 (2002); accord T. Markus Funk,
The Dangers of Hiding Criminal Pasts, 66 TENN. L. REV. 287, 303 (1998) (debunking the
idea of sealing juvenile records from employers’ view). Yet, others underscore that predictability of reoffending is based on a great variety of variables, and “risk can attach only to
those individuals who exhibit multiple risk characteristics.” Harris & Keller, supra note 5, at
12; accord Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal
Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483, 483 (2006) (endorsing the prognostic value of criminal records shortly following the arrest, but concluding that
after six or seven years, the risk of reoffending “begins to approximate (but not match) the
risk of new offenses among persons with no criminal record”). See also Jeffery T. Ulmer,
Intermediate Sanctions: A Comparative Analysis of the Probability and Severity of Recidivism, 71 SOC. INQUIRY 164, 185 (2001), for a conclusion that compared to men, women with
previous arrests are less likely to be rearrested and their subsequent arrests are likely to be for
less serious offenses.
148. See Legal Action Center, Recommended Key Provisions for Certificate of Rehabilitation Legislation, (last visited Feb. 1, 2008) [hereinafter Recommended Key Provisions]
(describing the presumptive effect of New York rehabilitation certificates in licensing determinations of good moral character).
149. Of course, in a case of racial discrimination, neither the law of negligent hiring
nor the anti-discrimination measures protecting convicted individuals should be able to alter
the truism that employers are allowed to rely on their personal preferences in selecting their
employees. Cf. D. Marvin Jones, No Time for Trumpets: Title VII, Equality, and the Fin de
Siecle, 92 MICH. L. REV. 2311, 2339 (1994) (“The line dividing between racial animus and
the employer’s taste—to hire and fire whom he pleases for good reason, bad reason, or no
reason at all—again becomes the dividing line between public and private spheres of decisionmaking.”) (citation omitted).
150. Critics of this approach may point out that public and private employers might
not be sufficiently influenced by the certificates. See Pager, supra note 12, at 508 n.4 (pointing to ineffectiveness of certificates in eradicating employers’ preconceptions); Debbie A.
Mukamal, Confronting the Employment Barriers of Criminal Records: Effective Legal and
Practical Strategies, 33 CLEARINGHOUSE REV. 597, 604 (2000) (doubting the powerful effects of certificates on private employers); cf. Geiger, supra note 54, at 1201 (noting, in the
context of arrest records, that unless they are sealed, employers might be in the “dubious
position of being able to view, but not consider” them). To cure this possible drawback,
certificates should be replaced by restoration orders issued by sentencing courts, which
would grant the decision the judicial imprimatur deserving of employers’ respect. See infra
Subsection III.A.1.
Reaching a Compromise
disqualifications based on the conduct underlying the conviction, rather than
the fact of the conviction itself.151
1. Advantages over Other Methods of Restoration
The legal effect and persuasiveness of the certificates to employers
could be enhanced if they were issued exclusively by the sentencing court,
rather than an administrative body,152 in the form of an order removing an
ex-offender’s disabilities—either directly upon sentencing or at a later time,
upon an individual’s application.153 Such a two-tiered model would complement the current Michigan system of equalizing ex-offenders’ opportunities or, perhaps, altogether replace its limited and rarely-utilized expungement and pardon provisions.154
151. A similar movement towards finding the middle ground between automatic
disqualifications based on a conviction and automatic reinstatement to the status quo ante
existed in Europe in the twentieth century. See Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study (Part 2), 59 J. CRIM. L.
CRIMINOLOGY & POLICE SCI. 542, 564-67 (1968). Today, when the time colored by the “get
tough” attitude towards crime characteristic of the 1980-90s has seemingly passed, the idea
of gradual elimination of collateral consequences of a conviction is supported by many authors. See, e.g., Freisthler & Godsey, supra note 117 (proposing to prohibit conviction-based
disqualifications unless they are justified because of the conduct underlying convictions);
Sharon M. Dietrich, Criminal Records and Employment: Ex-Offenders Thwarted in Attempts
to Earn a Living for Their Families, in CTR FOR LAW AND SOC. POL’Y & CMTY. LEGAL
25 (2002) [hereinafter EVERY DOOR CLOSED] (endorsing expungement of records after a
period of time, sealing records, offering certificates of rehabilitation, and reexamining pardon
standards); Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47
VILL. L. REV. 1027, 1053 (2002) (proposing a “Marshall Plan” of post-sentence assistance to
drug offenders where “[e]very step toward rehabilitation would be rewarded with greater
access to the labor market”).
152. Naturally, the exclusive power of courts to issue such removal orders does not
mean the cessation of any collaboration between the probation or parole offices and the
courts. In appropriate circumstances, courts should be able to order recommendations from
the probation or parole personnel, as well as, perhaps, from the prosecuting attorney. But see
Note, Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, 113
HARV. L. REV. 1485, 1501-02 (2000) (pointing out an internal conflict between prosecutorial
initial duties to condemn and convict a defendant and the subsequent obligation to objectively assess the degree of a defendant’s rehabilitative success).
153. The restoration of ex-offenders’ status is achieved also by way of a court decision in Italy, Greece, Switzerland, Poland, Turkey, and a number of South American countries. See Damaska, supra note 151, at 564. The same approach is advocated by the American Law Institute’s MODEL PENAL CODE § 306.6. See Love, Starting Over with a Clean
Slate, supra note 105, for a thoughtful analysis of the Section and a strong argument in favor
of its adoption.
154. See the description of expungement and pardon mechanisms in Michigan supra
notes 103-05. The same approach of vesting judges with the responsibilities of removing
civil disabilities of ex-offenders seems to exist in Arizona. See ARIZ. REV. STAT. ANN. § 13-
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The court-issued restoration order is superior to the automatic restoration155 in that it represents a thorough, judicially-weighed judgment on the
degree of the person’s rehabilitation, and serves as a more reliable indicator
of one’s good moral character.156 Because it does more than simply attest to
the crime-free conduct of an applicant during the specified period of time,
the restoration order surpasses, in its effect, New York’s Certificates of Relief from Disabilities issued by the Parole Board or Certificates of Good
Conduct.157 Further, as an order issued by the courts of the state, the restoration order carries with it the kind of judicial imprimatur that the Certificate
issued by the Parole Board or an administrative agency would lack.158
Likewise, the removal order provides a superior alternative to a lengthy,
unreliable, and rarely-utilized procedure of executive pardons, which takes
years to complete, varies from jurisdiction to jurisdiction, has a political
price attached to it,159 and is ineffective with respect to federal disqualifications.160
906(A)-(B) (2001) (providing for the restoration of ex-offenders’ civil rights “by the superior
court judge by whom the person was sentenced or his successors in office”).
155. One interesting method of the automatic restoration of ex-offenders’ rights used
in England has been to pass a statute that would prohibit individuals and entities from counting an offense as a conviction or giving it the legal effect of such. See von Hirsch & Wasik,
supra note 137, at 604 (describing the Powers of Criminal Courts Act 1973).
156. See Love, Starting Over with a Clean Slate, supra note 105, at 1719. Even
though some licensing agencies or professional boards may consider convictions in determining an applicant’s good moral character despite the issued certificate, a better enforcement of the State’s anti-discrimination statute, see infra Section III.B, wider public dissemination of the information about the statute, and the requirement of thorough explanation of
an adverse hiring or licensing decision may remedy this potential drawback. See THE INDEP.
(2006) [hereinafter REPORT AND RECOMMENDATIONS TO NEW YORK STATE] (reporting that
“more often than not” employers and licensing boards consider one’s criminal record as
reflecting on the person’s moral character).
157. See supra note 145 for a detailed description of the New York’s model for issuing these Certificates.
158. See Love, Starting Over with a Clean Slate, supra note 105, at 1732 (“[B]ecause
it requires the personal action of a judge, restoration under section 306.6(1) [of the Model
Penal Code] carries with it a certain imprimatur of official respectability that automatic restoration and administrative procedures do not have.”).
159. As is well-known, ex-offenders—who are themselves a politically impotent
group—are not particularly popular with the public. See Harris & Keller, supra note 5, at 23.
Thus, governors, including those from Michigan, have not been too ardent in granting pardons to applicants. See discussion of the frequency of pardons in Michigan supra note 104.
160. See Love, Starting Over with a Clean Slate, supra note 105, at 1720-23 (noting
the drawbacks of state pardon mechanisms). Federal laws, meanwhile, set a multitude of
roadblocks on ex-offenders’ way to successful reintegration. See OFFICE OF THE PARDON
CONSEQUENCES UPON CONVICTION (2000), available at (enumerating federal statutes disqualifying ex-offenders
Reaching a Compromise
Removal orders would also provide relief to a broader spectrum of exoffenders than would be eligible through an expungement procedure.161 In
addition, unlike expungement, which is founded on the fiction that the offense never happened, a removal order would not attempt to conceal the
truth, but, to the contrary, would stand as a proud pronouncement of an exoffender’s rehabilitation.162 Naturally, upon issuance, a removal order must
be entered into an applicant’s criminal record, perhaps, with an explanation
of its legal effect for employers’ information.163 In that way, the order, albeit leaving the record transparent for scrutiny, would still provide the presumption of complete rehabilitation for the purposes of licensing and absolve public or private employers from negligent hiring liability.164
Another advantage of having removal orders issued potentially upon
sentencing is the resulting treatment of collateral consequences of a conviction as a “part of the sentence itself,” which subjects them to the usual sentencing restraints of “fairness and proportionality.”165 Accordingly, informfrom various opportunities); see also Meltsner et al., supra note 144, at 889-90 (“When it
comes to providing jobs . . . those very entities that are responsible for rehabilitating prisoners—the states and the federal government—set a most unedifying example.”) (quoting
SHOULD BE DONE? 10 (1970)). Sadly, the number of federal restrictions on ex-offenders’
employment has increased significantly after September 11, 2001. See REPORT AND
161. As noted previously, Michigan, like many states, limits expungement to first
offenders, excluding certain sexual offenses and offenses carrying potential life sentences.
See supra note 103.
162. See Love, Starting Over with a Clean Slate, supra note 105, at 1726
(“[E]xpungement fails to afford an opportunity for the offender to be reconciled to the community and ‘helps society to evade its obligation to change its views toward former offenders.’”) (citation omitted); see also Portnoy, supra note 118, at 317 (emphasizing the ineffectiveness of pardons and expungement provisions as “indirect methods of blotting out past
crimes” because of society’s reluctance “to give up its right to know”).
163. See Recommended Key Provisions, supra note 148, at 2 (instructing states enacting the rehabilitation certificates procedure to make a notation about an award of the
certificate upon an ex-offender’s record). In conjunction with the requirement of the notation
on the record, the State must either mandate that commercial data providers verify the completeness of their records upon release to clients, or altogether restrict the task of dissemination of records to state repositories. See EMPLOYMENT SCREENING FOR CRIMINAL RECORDS:
to reserve a function of conducting criminal records searches to state agencies and to limit
the records accessible by employers to the results of a standard “fitness determination” inquiry); see also discussion infra Subsection III.C.1.
164. See discussion infra Subsection III.B.1. The function of a removal order as
releasing an employer from potential negligent hiring liability is of paramount importance.
In this aspect, a removal order differs from the New York certificate of rehabilitation, which
does not prevent employers and licensing bodies from considering the underlying offenses
and consequently does not shield them from negligent hiring liability. See supra note 145.
165. Love, Starting Over with a Clean Slate, supra note 105, at 1732. Then, the
consequences of a conviction become “calibrated specifically to the offense and offender’s
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ing an individual of the collateral consequences of a conviction becomes the
necessary condition of accepting a plea, which, in turn, increases the accused’s awareness of the far-reaching importance of entering into the plea
arrangement.166 Although court-issued removal orders are vulnerable to
criticism based on the political incentives of elected state judges and the
Governor to issue these orders parsimoniously,167 the requirement of thorough explanation of the grounds for the decision and the opportunity to appeal the denial should provide a sufficient check on judges’ political motivations.168
2. The Two-Shots-at-Restoration Approach
The present Michigan system provides for a limited, one-shot opportunity for restoring an ex-offender’s civil rights.169 Yet, the principle of
proportionality favors a more nuanced system of gradually rewarding one’s
rehabilitative efforts with the correspondingly expanding number of civil
rights and privileges.170 Such a system can be implemented by way of
granting, at first, a temporary, revocable order restoring only some of an exoffender’s suspended rights, and issuing a complete, unqualified restoration
background,” which better serves preventive, denunciatory, and retributive goals of criminal
punishment. Demleitner, supra note 142, at 160-61.
166. Taking into consideration the fact that about ninety percent of all criminal cases
are disposed of by way of a plea arrangement, informing defendants of potential consequences of their pleas is vital. Leroy D. Clark, A Civil Rights Task: Removing Barriers to Employment of Ex-Convicts, 38 U.S.F. L. REV. 193, 197 (2004). Not surprisingly, then, the idea
of informing criminal defendants of collateral consequences following the plea has been
widely advocated. See, e.g., Clark, supra, at 197-98 (urging that both a defense counsel and
a judge must have responsibilities to advise a defendant of collateral consequences stemming
from her plea); Jennifer L. Bahnson & Robert J. Dieter, Collateral Effects of a Criminal
Conviction in Colorado, 35 COLO. LAW. 39, 39-40, 45 (2006) (noting that collateral consequences of a plea might be far greater than an immediate impact of the imposed sentence and
arguing that courts should disclose them in advance).
167. See Note, Winning the War on Drugs: A “Second Chance” for Nonviolent Drug
Offenders, supra note 152, at 1502 (discussing the potential pitfall of political disincentives
in the judicial sealing of criminal records).
168. The same basic requirements of giving a written explanation for the decision and
appealability of the denial are already in place in the Michigan licensing statutes. See, e.g.,
MICH. COMP. LAWS § 333.6243 (2001) (providing an opportunity for a hearing and appeal in
licensing actions involving substance abuse services); id. § 400.722 (providing for a hearing,
opportunity for appeal, and an explanation of the grounds for denial in foster care facility
licensing actions).
169. See supra notes 103-05.
170. Under such a system, even though the full extent of civil opportunities might not
be available to ex-offenders at once, the prospect of achieving a greater freedom from disabilities in the future could incentivize them to desist from committing further offenses. Cf.
Raphael, supra note 106, at 516 (suggesting the possibility of positive behavioral response of
ex-offenders to the prospects of having their records purged).
Reaching a Compromise
order only after a set period of time commensurate with the categorical seriousness of the offense and the number of an individual’s convictions.171 In
this model, an offender’s first chance to circumscribe the collateral damage
of the conviction presents itself at the time of the sentencing, where a judge
could, in appropriate circumstances, limit the effect of the conviction on the
defendant’s subsequent employability.172 Naturally, not all offenders would
be eligible for a restoration order immediately upon sentencing. Many, especially those sentenced to a prison term, would be eligible for restoration
only after accumulating significant evidence of rehabilitation.173 Nor would
the sentencing court always be well-equipped to make prospective determinations of a conviction’s relevance to all possible employment positions or
licensed activities, let alone judgments on a conviction’s germaneness to
particular risks of various employment fields or occupations.174 These de171. See discussion of the terms for the second order infra Subsection III.A.3. A
similar double-tier system for restoration of an ex-offender’s status exists in the New York
model of rehabilitation certificates, where an ex-offender can first receive a Certificate of
Rehabilitation restoring some of his rights, and then, after a period of one to five years (depending on the seriousness of an offense), a non-revocable Certificate of Good Conduct. See
supra note 145. Similarly, MPC’s Section 306.6 divides the restoration process into the
initial Order Removing Disqualifications or Disabilities, MODEL PENAL CODE § 306.6(1), and
a subsequent Order Vacating the Judgment of the Conviction, id. § 306.6(2). See Love,
Starting Over with a Clean Slate, supra note 105, at 1731-33 (discussing the symbolic value
of the vacation order under MPC’s § 306.6(2) as certifying that “the convicted person has
paid the full price for his crime and has earned the right to return to responsible membership
in society”).
172. This judgment should combine both an evaluation of the gravity of a crime and a
prediction of the defendant’s tendency to recidivate. For instance, a first-time, non-violent
offender might be eligible for restoration of full employment privileges immediately upon
the completion of the sentence. Cf. REPORT AND RECOMMENDATIONS TO NEW YORK STATE,
supra note 156, at 11 (proposal to seal records for certain categories of non-violent offenses
conditionally immediately upon completion of the sentence). Besides an assessment of individual characteristics of an offender and particular facts of the underlying offense, another
indicator of one’s eligibility to have her employment privileges restored at sentencing is the
categorical nature of a crime: victimizing versus victimless, malum in se versus malum prohibitum, deceptive versus non-deceptive, repeated versus first-time, moral turpitude versus
non-moral turpitude. Kalt, supra note 136, at 142-45 (suggesting to abandon blanket exclusion of ex-felons from jury service in favor of an individualized treatment of crimes, criminals, or trials).
173. In addition to merely being crime-free during a certain period of time, an exoffender may strengthen her case by presenting evidence of gainful employment and demonstrating other means of support, evidence of sobriety, reference letters, participation in community service, and attainment of vocational and educational training. See Recommended
Key Provisions, supra note 148, at 2 (providing factors indicative of rehabilitation for the
benefit of other states considering enacting a provision for certificates of rehabilitation).
174. See von Hirsch & Wasik, supra note 137, at 625 (“A judge cannot be expected
to specify, at the time of sentence, every form of employment in respect of which a convicted
person would represent a substantial risk . . . .”). At the same time, such rulings are not
entirely impossible. For instance, a court is perfectly capable of restoring employment rights
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terminations would be best made later, by employers or courts charged with
enforcing the jurisdiction’s ex-offender anti-discrimination statute.175 Nevertheless, the sentencing court’s general ability to relieve qualified defendants176 of employment disqualifications is a necessary and effective tool in
the state’s overall effort to reduce discrimination against ex-offenders.177
3. Absolute Restoration: Outer Limits of Proportionality
Because the collateral effects of the conviction are predicated on the
notion of preventing future risks178 and because petty crimes prompted
merely by one’s imprudence do not merit onerous disqualifications lasting
forever, an offender must, at some point, be regarded as fully redeemed.179
The absolute removal of disabilities should then be available to individuals
who already received the initial and likely limited-scope removal orders at
the time of the sentencing. More importantly, it should be available to those
whose sentencing requests for removal orders were denied and who have
refrained from committing a crime for a certain period of time. A tougher
of a person convicted of drunk driving to the extent that the job’s essential duties do not
involve operating a vehicle.
175. See discussion of the proposed anti-discrimination statute infra Section III.B.
176. It is important not to restrict—in a categorical manner as New York does—the
eligibility for initial removal orders issued at sentencing to individuals with no more than one
felony conviction. Contra N.Y. CORR. LAW § 702-03 (McKinney 2003) (reserving the applicability of the initial Certificates of Relief from Disabilities to individuals with no more
than one felony offense). Such restrictions are unwise, for they are ill-tailored to the particular circumstances of each defendant’s case that might very well merit a favorable judicial
decision immediately upon sentencing (as, for instance, in a case of a felon with a substantial
time gap separating the two felony convictions).
177. The ability of the courts to streamline the process of removing employment
disabilities of ex-offenders is especially valuable in light of the nationwide data indicating
that about three out of every four individuals released from prisons in 2003 have served their
GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 10. Moreover, thirty-seven
percent of non-violent offenders expected to be released in the first six months of 2004 were
serving their terms for drug offenses, and seventeen-and-one-half percent were incarcerated
for drug possession specifically. Id. With some minor exceptions, these offenders could
qualify for complete reinstatement of employment privileges upon sentencing, or upon secondary application to the sentencing court after release.
178. But see Harris & Keller, supra note 5, at 14 (concluding that state and federal
laws governing the entry of ex-offenders into the workforce are flawed in that they both
overstate the relation of a criminal record to an individual risk of re-offending and attribute
too much significance to the idea of crime specialization and therefore “do not convey useful
information concerning the likelihood that particular applicants will engage in repeat offending”).
179. See von Hirsch and Wasik, supra note 137, at 612-15 (analyzing the reasons for
the existence of outer proportionality limits on civil disqualifications and recognizing that
due to their non-penal nature, collateral disqualifications are not circumscribed by any lower
temporal constraints).
Reaching a Compromise
question is how long this period of time should be, and whether it should
vary in consideration of the gravity and number of offenses.180
In answering these questions, consideration of empirical data is beneficial. This data unequivocally demonstrates that the likelihood of recidivism among the newly-released offenders is especially high during the first
three years following release.181 With the passage of time, however, the
recidivism curve flattens out, becoming virtually non-distinguishable from
the crime rate among first offenders after six or seven years of the crimefree conduct.182 Similarly, research reveals the connection between the type
of conviction and the ex-offender’s tendency to commit another offense in
the same field.183
Nevertheless, these statistics do not fully answer all the questions.
Given the complex and somewhat circuitous nature of the crimeemployment relationship,184 setting a demarcation line at which an ex180. While many scholars support automatic removal of disabilities after a certain
period of time, the view that this period should vary for different categories of defendants
depending on the gravity of the committed offense is not so popular. See, e.g., Love, Starting Over with a Clean Slate, supra note 105 (advocating the MPC § 306.6(2) approach of
waiting for five years before becoming eligible for the Order Vacating the Judgment of Conviction); Grant et al., supra note 116, at 1239 (recommending “automatic restoration of all
rights and privileges five years after the convict’s release into the community”); Kurlychek et
al., supra note 147, at 498-500 (presenting empirical data in support of a federal trucking
statute’s universal seven-year limit on the use of criminal records to applicants’ detriment).
Compare with Meltsner et al., supra note 144, at 906 (proposing the model for absolute
removal of disabilities, with removal available directly upon conviction in case of a violation
[an offense punishable by a maximum of fifteen days of imprisonment], and with the statutory waiting period of seven years in case of a felony, and three years in case of a misdemeanor); cf. Kalt, supra note 136, at 143 (proposing to “tie the length of exclusion [from jury
service] to the length of a sentence, so that short sentences allowed for relatively swift restoration of jury eligibility”).
181. See discussion of recidivism rates early upon ex-offenders’ release supra note
182. See Kurlychek et al., supra note 147, at 483 (presenting an empirical study that
shows that after six or seven years of crime-free conduct ex-offenders’ risk of reoffending
begins to approximate, although not exactly match, the risk posed by people with clean records); see also Peter B. Hoffman & Barbara Stone-Meierhoefer, Reporting Recidivism Rates,
8 J. CRIM. JUST. 53, 57 (1980) (listing annual rates of recidivism at fifteen percent during the
first year, ten percent during the second, seven percent during the third, and four, three, and
three percent during the fourth through the sixth years respectively).
183. For instance, sex offenders are at a higher risk of committing another sex-related
crime than people without prior record of sex crimes. See Harris & Keller, supra note 5, at
13. At the same time, it is also true that the majority of sex offenses are committed by individuals without prior sex-related convictions. Id.
184. See discussion of the relationship between crime and employment supra notes 3,
106, and 136. Apart from the interrelationship between crime and employment at the level
of each individual offender, the reciprocal relationship between crime and employment also
operates—and with much more pronounced consequences—at the level of a community. See
Shawn D. Bushway & Peter Reuter, Labor Markets and Crime Risk Factors, in EVIDENCE-
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offender may apply for the absolute removal of civil disabilities inevitably
becomes a policy-laden decision, balancing societal concerns about security
and reduction of workplace crime with the policy towards successful reintegration of ex-offenders and decrease in the prison population. Since the
majority of these concerns revolve around violent crimes—both from the
standpoint of policymakers185 and that of employers, equally186 —they would
be best accommodated by the disparate treatment of violent and non-violent
offenders.187 Consistent with this principle, the Michigan legislature would
BASED CRIME PREVENTION 198-99 (Lawrence W. Sherman et al. eds., 2002) [hereinafter
Bushway & Reuter, Labor Markets and Crime Risk Factors]. Inasmuch as “[c]rime in a
community is the outcome of the interaction between propensity and opportunity to commit
crime,” different communities either attract or repel criminal behavior. Id. at 199. “[P]oor
communities offer weak job prospects but also . . . financially unrewarding criminal opportunities,” whereas “high employment may be associated with . . . greater wealth,” but at the
same time, with the increased criminal opportunities. Id. As a result, high-crime communities are not only unattractive in terms of investment opportunities, but also expose the property and residents within the community to higher risks associated with crime. Id.
185. Non-violent offenders represent three quarters of the nationwide prison population.
RECOMMENDATIONS TO CONGRESS, supra note 141, at 10. Yet, this category of offenders
(especially drug offenders’ subcategory) seems to bear the brunt of civil disqualifications
faced by ex-offenders generally. See Demleitner, supra note 151, at 1033-45 (describing
collateral consequences imposed by federal laws specifically on drug offenders as “more
severe than those imposed on murderers, rapists and kidnappers”); see also Note, Winning
the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, supra note 152, at
1491-93, 1502 (2000) (discussing both collateral and direct components of the War on Drugs
and endorsing the Second Chance legislation developed by Harvard Professor Charles Ogletree, Jr., former New York Mayor Ed Koch, and civil rights activist Reverend Al Sharpton).
186. Generally, employers are particularly hesitant to hire individuals with a record of
violent crimes. See Holzer et al., supra note 106, at 24 (reporting the results of the study
confirming this proposition in Los Angeles); see also Kalt, supra note 136 (reporting results
of another survey indicating that sixty-five percent of employers would not be willing to hire
an ex-offender). Indeed, this unwillingness is understandable, for a great majority of negligent hiring cases stem from employers’ failure to discover employees’ violent propensities as
alerted to by their criminal records. See discussion supra note 133.
187. The idea of using collateral consequences of non-violent (mainly drug) offenders
more sparingly underlies the Second Chance proposal endorsed by the Legal Action Center.
BRINGING JUSTICE TO SCALE 22 (Feb. 2007), advance copy available at
The proposed legislation
would permit conditional sealing of certain non-violent convictions, after giving a notice and
an opportunity to respond to a prosecuting attorney. Id. at 38. Relief would be available to
eligible applicants immediately upon completion of the sentence in case of a drug felony
conviction, after three years of completion of the sentence in case of “class D or E nonviolent felony,” and after five years after completion of the sentence in case of “class B or C
non-violent felony.” Id. at 38-39. In any event, records of non-violent convictions would be
sealed automatically ten years after completion of the sentence for the last offense. Id. at 37.
See also NEV. REV. STAT. § 213.090 (2005) (disqualifying serious violent offenders from the
scope of the Nevada pardon provision).
Reaching a Compromise
strike an appropriate balance between the competing interests of exoffenders and society at large by allowing non-violent misdemeanor offenders to apply for unqualified restoration orders after one year of crime-free
conduct,188 while extending this period to three years for those convicted of
violent misdemeanors.189 In parallel with the scheme for misdemeanors,
former felons should be permitted to apply for absolute removal orders after
three years of crime-free behavior in the case of a non-violent felony,190 and
after five years in the case of a violent one.191 Exceptions must be made for
individuals with multiple convictions—for instance, those who have at least
two felonies on their record,192 as well as for individuals convicted of sexual
188. In light of the overall calculus of the proposed legislation for the reinstatement
of ex-offenders’ civil rights, the legislature should measure the period of “crime-free conduct” as commencing at the date of the last conviction or of the person’s release from actual
confinement, whichever is the later date. See Meltsner et al., supra note 144, at 906 (suggesting that the initial calculation point is either the release from actual confinement or the
date of the last conviction, but not the discharge from parole). This formulation of the
“crime-free conduct” would enable not-yet-discharged parolees to also get secondary removal orders and thus improve their chances at full reintegration. See, e.g., CAL. PENAL CODE §
4852.03(a) (West 2000) (“The period of rehabilitation shall begin to run upon the discharge
of the petitioner from custody . . . or upon his or her release on parole or probation, whichever is sooner.”); cf. N.Y. CORR. LAW § 703-b (McKinney 2003) (allowing parolees to file only
for temporary, revocable Certificates of Good Conduct). But see ARIZ. REV. STAT. ANN. §
13-906(B) (2001) (starting the restoration order clock for individuals discharged from a
prison and convicted of two or more felonies only from the time of their “absolute discharge”).
189. Similar one- and three-year waiting provisions currently exist in New York for
applying for a Certificate of Good Conduct; however, instead of a violent/non-violent distinction, the one-year waiting period applies to misdemeanors, while the three-year provision
applies to less serious felonies classified under Classes C, D or E. See N.Y. CORR. LAW §
703-b (McKinney 2003).
190. Similarly, a recently enacted Illinois statute, for example, authorizes the sealing
of a record of certain misdemeanors and minor felonies after a three-year waiting period. 20
ILL. COMP. STAT. ANN. 2630/5 § 5 (West Supp. 2006).
191. The five-year term has been symbolic in the jurisprudence defining eligibility of
ex-offenders to regain their unqualified civil status. Not only does Michigan employ this
term in defining the eligibility of an applicant desiring to set aside her conviction, see supra
note 103, but many researchers also attribute special significance to the five-year point. See,
e.g., MODEL PENAL CODE § 306.6(b) (recommending a five-year waiting period before an
applicant can apply for an Order Vacating the Judgment of the Conviction); Grant et al.,
supra note 116, at 1239 (recommending automatic restoration of civil disqualifications after
five years of crime-free conduct); cf. R. Paul Davis, Records of Arrest and Conviction: A
Comparative Study of Institutional Abuse, 13 CREIGHTON L. REV. 863 (1979) (describing the
1977 Proposal of the Attorney General of California that records of misdemeanor arrests not
followed by a conviction be kept for five years).
192. The exclusion on the grounds of multiple felony convictions is fairly typical and
is supported by stronger justifications of crime prevention than other types of collateral disqualifications. See, e.g., NEV. REV. STAT. § 213.090 (2005) (disqualifying individuals with
two or more felony convictions arising out of distinct occurrences from eligibility to apply
for pardon and restoration of civil rights); MICH. COMP. LAWS § 780.621 (1998) (disqualify-
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offenses.193 In this case, the legislature should perhaps use an upperbracket, seven-year period for the purpose of determining the eligibility of
these offenders for removal orders.194
The suggested time increments should be used to determine when
former offenders are allowed to apply for absolute removal of all disabilities
associated with their convictions. In addition to these periods, the legislature should identify a period of time after which individuals whose requests
for absolute removal orders were denied should become eligible for reconsideration—for instance, two years since the last denial.195 To better tailor
the provision to the individual circumstances of each case, judges considering the case must have discretion to waive the statutorily-imposed waiting
term in compelling circumstances.196
ing multiple offenders from pardon eligibility). One way to soften the impact of this harsh
provision is to provide for an equitable waiver of the statute’s longer term applied to multiple
felony offenders if a person’s felony convictions are separated by a significant gap in time—
for instance, by a minimum of five years.
193. One basis for disparate treatment of sex offenders is a greater recidivism potential presented by the group. See discussion supra note 183. But these greater risks notwithstanding, the handicaps and the stigma attached to sex offenders must still be at some point
circumscribed. See G. Scott Rafshoon, Community Notification of Sex Offenders: Issues of
Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995) (endorsing the registration requirement imposed on sex offenders and characterizing it as a part of punishment [and
not as a civil disability], but debunking the concept of community notification because it
imposes an excessive disability). The issues surrounding the treatment of sex-offenders
specifically are, however, beyond the scope of this Comment.
194. The seven-year waiting period is likewise proposed in many academic proposals
for removing civil disabilities of ex-offenders and is used in practice in some existing statutes. See, e.g., Meltsner et al., supra note 144, at 906 (proposing to eliminate collateral
disabilities accompanying a felony conviction after seven years of crime-free conduct);
RECOMMENDATIONS TO CONGRESS, supra note 141, at 8 (recommending that Congress adopt
the model of the Maritime Transportation Security Act of 2002, 46 U.S.C. § 70105(c)(1)(A)
(2000), which uses a seven-year cut-off point after which an individual may not be denied a
transportation security card on the basis of a felony conviction); cf. Fair and Accurate Credit
Transactions Act of 2003, 15 U.S.C. § 1681C(a) (Supp. 2004) (prohibiting from inclusion
into a consumer credit report breaches of credit worthiness that are more than seven years
195. The same two-year waiting period was utilized, for instance, in the New Jersey
statute providing that “[a]n application for a certificate of good conduct shall not be entertained unless . . . at least two years have passed since the date any similar application was
denied . . . .” N.J. ADMIN. CODE § 10A:70-8.2 (2002). The statute has since expired.
196. Again, the expired New Jersey statute exemplified the suggested approach. See
id. What represents a “compelling circumstance” is hard to define; it should be determined
by way of a case-by-case evaluation performed by an individual judge, and it is likely to be
tied to the nature of an underlying offense(s) and the obstacles preventing the judge from
granting absolute relief during the initial attempt.
Reaching a Compromise
In sum, if we are to curb the incarceration binge of the eighties and
nineties,197 the notion of affording everybody—even multiple or violent
offenders—a second chance is crucial. Equally crucial is the understanding
that doing so will not sacrifice the safety and integrity of society as long as
the courts charged with issuing removal orders—and not private employers,
licensing bodies, or overworked parole and probation agents198—will perform their task of filtering out dangerous or unfit ex-offenders. Furthermore, an additional safeguard against the risks associated with employing
ex-offenders at certain jobs comes from the combined effects of the negligent hiring doctrine and the direct relationship test of the anti-discrimination
statute that Michigan should adopt.199
B. Ex-Offender Anti-Discrimination Statute: Direct Relationship Test
Navigating between the proclaimed policy of the state towards rehabilitation of ex-offenders200 and its laissez-faire attitude towards private employment relationships is difficult because these two ends are in inherent
tension.201 Yet, leaving this conflict without state regulation—as Michigan
does202—results in rampant exclusion of ex-offenders from the private workforce.203 To cure the side effects produced by the combination of the law of
197. See Kathleen M. Olivares et al., The Collateral Consequences of a Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 FED. PROBATION 10, 10
(1996) (concluding, after having compared the states’ legal codes in 1986 with the codes in
1996, that “[t]he criminal justice system has witnessed a shift toward policies aimed at ensuring deterrence and incapacitation”).
198. One way to characterize the proposed plan for issuance of removal orders is as a
method to redirect the discretionary powers over ex-offenders’ fates from the hands of employers, licensing bodies, and people in general, who act on their intuitive urges, into the
hands of judges, who are better equipped to make individualized decisions of that kind. See
Holzer et al., supra note 106, at 21, for a discussion of “statistical discrimination” that employers engage in and that exemplifies the emotional, rather than rational, nature of employers’ decisionmaking.
199. See discussion infra Section III.B.
200. See discussion supra Section II.B and cases cited supra note 98.
201. Employers’ reluctance to hire ex-offenders is propelled, in part, by their fears of
negligent hiring liability, see discussion supra Part I, as well as by other concerns usually
associated with ex-offenders as a group, see supra note 135.
202. While Michigan makes certain attempts to circumscribe discrimination stemming from stale convictions in the sphere of licensing, see discussion supra Subsection II.B.2
and note 112, the state lacks any regulations governing private employment, see discussion
supra Subsection II.B.1. See also Margaret Colgate Love, The Debt That Can Never Be
Paid, 21-Fall CRIM. JUST. 16, 23 (2006) [hereinafter Love, The Debt That Can Never Be
Paid] (listing Michigan as one of the eleven states that “limit consideration of conviction in
connection with occupational licensing but not employment”).
203. In addition to the problem of complete exclusion, ex-offenders who do succeed
in finding jobs face the problem of a “‘wage penalty,’” which operates to diminish exoffenders’ wages by about ten to twenty percent as compared to their non-convicted counter-
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negligent hiring and the state’s policy of non-interference, Michigan should
not rely solely on the selective protections of federal regulations, but instead
should enact its own aggressive and easily enforceable “color-blind”204 legislation prohibiting discrimination on the basis of a conviction record unless
the latter is “directly related” to prospective employment or licensed activity.205 Such a regulation will invalidate capricious and biased decisions of an
employer while protecting the decisions legitimately grounded in business
1. The Elements-Only Approach: Protecting Employers from Chaos
Albeit in a variety of formulations,207 two-thirds of American jurisdictions have adopted some form of the direct relationship test to assess the
relevancy of one’s criminal record to the prospective occupation or employment in limiting the scope of permissible conviction-based disqualificaparts. See JEREMY TRAVIS ET AL., FROM PRISON TO HOME: THE DIMENSIONS AND
(2001), Maybe it is partly due to
the lack of any regulations protecting ex-offenders from these practices that Michigan, along
with ten other states, “accounted for 57% of all state prison releases in 1983,” with sixtythree percent of these offenders ultimately rearrested in connection with a felony or a serious
misdemeanor. Thompson, supra note 135, at 259 n.21 (quoting results of the 1989 Department of Justice Study).
204. The term is borrowed from EVERY DOOR CLOSED, supra note 151, at 24 (proposing to codify the EEOC Guidelines for meeting the Title VII “‘business necessity’” standard
into “color-blind” laws).
205. Of course, the formulation of the test in terms of “direct relationship” is not
principal. See infra notes 209-12 for other possible formulations of the test used in the leading jurisdictions. The same spirit of “direct relationship” is reflected in a recent proposal
introduced into the Michigan Senate to prohibit employment discrimination on the basis of
an individual’s credit history unless a good credit history is “an established bona fide occupational requirement of a particular position.” S. 1252, 93d Leg., Reg. Sess. (Mich. 2006).
206. Integrating this law into the Elliott-Larsen Civil Rights Act—as opposed to
enacting it as an isolated and a freestanding provision—would boost the statute’s enforceability, enhance the public’s familiarity with it, and, most importantly, provide for the payment of reasonable attorney fees under the fee-shifting mechanism of the statute. MICH.
COMP. LAWS § 37.2802 (2001). See Love, The Debt That Can Never Be Paid, supra note
202, at 23 (noting that only a few states’ records-based anti-discrimination provisions are
incorporated into the states’ fair employment practices schemes and implying that an opposite approach diminishes the enforceability value of these provisions); see also EVERY DOOR
CLOSED, supra note 151, at 19 (positing the absence of a typical employment discrimination
fee-shifting provision as an explanation for rare enforcement of conviction-based antidiscrimination statutes).
207. See Margaret Colgate Love, Consideration of Criminal Record in Licensing and
A CRIMINAL CONVICTION tbl. 6 (Jan. 2006), available at, for a complete overview of jurisdictional approaches towards
the regulation of private and public employment and licensing.
Reaching a Compromise
tions.208 Among the most widely acclaimed of these approaches are the following four: New York’s Human Rights Law,209 Wisconsin’s Fair Employment Act,210 Minnesota’s Criminal Rehabilitation Act,211 and Hawaii’s antidiscrimination model.212 While all of these statutes unite in their broader
goal of limiting unwarranted conviction-based disqualifications, they differ
appreciably in the degree of consideration they give to one’s rehabilitative
efforts213 and to particular circumstances of the offense underlying each
208. See Love, The Debt That Can Never Be Paid, supra note 202, at 22 (roughly
classifying the states into the ones that simply prohibit arbitrary discrimination solely on the
basis of a conviction; the ones that define direct relationship through a combination of “the
circumstances of the offense, the amount of time since conviction, and the individual’s
demonstrated rehabilitation;” and the ones that “presume rehabilitation after a specified
number of years”).
209. N.Y. CORR. LAW §§ 750-55 (McKinney 2003). With the exception of law enforcement positions, positions requiring possession of a weapon, and employers with less
than ten employees, the New York model prohibits employers from disqualifying job applicants from prospective employment on the basis of a criminal conviction unless there is a
direct relationship between a previous conviction and a prospective employment or a licensed activity, or unless “the issuance of the license or the granting of the employment
would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Id. § 752. In making their determination, the decisionmakers
are encouraged to be guided by eight enumerated factors: (1) the public policy of the state
towards the reintegration of ex-offenders; (2) essential duties and functions of employment/licensed activity; (3) the impact of the criminal offense on “fitness or ability to perform” these duties or responsibilities; (4) the passage of time since the last offense; (5) the
age of a person at the time of the conviction; (6) gravity of an offense; (7) individual evidence of rehabilitation; and (8) “[t]he legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general
public.” Id. § 753(1). This model received many accolades as the most sensible way of
implementing the direct relationship test. See, e.g., Todd, supra note 74, at 757-60 (calling
for the adoption of the New York’s model in Arizona); Leavitt, supra note 15, at 1310 (characterizing the New York regulation as having made “great strides in the establishment of a
statutory scheme that reduces many of the common barriers to employment for exoffenders”).
210. WIS. STAT. ANN. § 111.322 (West 2002). The Wisconsin statute prohibits employment discrimination on the basis of a conviction or arrest record unless the circumstances of an offense “substantially relate to the circumstances of the particular job or licensed
activity,” or if the person is not bondable. Id. § 111.335(b).
211. MINN. STAT. ANN. § 364.03 (West 2004). The statute prohibits employment
discrimination based on a conviction unless a direct relationship exists between the conduct
underlying a conviction and an employment or occupation, as measured by the suggested
factors and if an applicant has not demonstrated sufficient evidence of rehabilitation. Id.
212. HAW. REV. STAT. ANN. § 378-2.5 (LexisNexis 2004). With some exceptions,
employers are prohibited from discriminating on the basis of an applicant’s arrest or court
record unless this record is “rationally related” to the prospective job; in addition, the Hawaii
statute is unique because any inquiry into an applicant’s background must occur after a conditional employment offer has already been extended. Id.; see generally Lau, supra note 76,
at 709-11 (describing the Hawaii model in detail).
213. Compare MINN. STAT. ANN. § 364.03 (West 2004) (prohibiting an adverse employment and licensing action—even if the applicant’s prior offense is directly related to
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individual conviction.214 They also differ in the choices regarding the enumeration of certain factors for employers’ guidance when assessing the existence of the direct relationship.215 In effect, these variances leave the power of making final determinations either to employers and licensing boards
or to the judicial branch.216
That Michigan should adopt some version of the direct-relationship
anti-discrimination statute governing private and public employment actions
and embracing licensing determinations is somewhat obvious.217 It is consistent with the policy of the state to facilitate reintegration of exoffenders218 and with some of its other initiatives to limit unwarranted dis-
prospective employment or occupation—if the applicant has presented sufficient evidence of
rehabilitation), with N.Y. CORR. LAW § 753(1) (McKinney 2003) (regarding evidence of
rehabilitation as only one of eight factors to be considered during the direct relationship
inquiry). See generally Lau, supra note 76, at 732-33 (stressing the difference between the
New York and the Minnesota laws on the issue of rehabilitation and endorsing the latter
scheme); Love, The Debt That Can Never Be Paid, supra note 202, at 23-24 (cataloguing
states’ approaches to establishing ex-offenders’ rehabilitation).
214. The Wisconsin statute, as interpreted judicially over time, illuminates particularly well the distinction between the “factor-specific” approach, which mandates an inquiry
into the specific circumstances of the past offense and the more abstract, “elements-only”
approach, which limits the inquiry to the examination of “‘elements’ or ‘essential concomitants’ of the crime.” Jeffrey D. Myers, County of Milwaukee v. LIRC: Levels of Abstraction
and Employment Discrimination of Arrest or Conviction Record, 1988 WIS. L. REV. 891, 911
(favoring a factor-specific approach which includes the mitigating circumstances of an offense into consideration). But see Hruz, supra note 64, at 848 (preferring the elements-only
test because it “looks only to clearly restricted considerations, namely the elements of the
crime and the duties and context of the job” and is, therefore, easier to apply).
215. Compare N.Y. CORR. LAW § 753(1) (McKinney 2003) (listing eight specific
factors for employers’ use in hiring decisions), with HAW. REV. STAT. ANN. § 831-3.1 (LexisNexis 2007) (omitting from the statute any specific factors for employers’ or courts’ guidance). See Lau, supra note 76, at 734 (urging for clarification of what factors must be evaluated within the parameters of the rational relationship test and advising to look to the New
York or Minnesota models for guidance).
216. See Hruz, supra note 64, at 844-45, 849 (positing that a generic and less individualized approach towards the direct relationship test appropriately vests the power to make
final judgments in employers who are directly involved in the decision).
217. The adoption of the direct relationship test has been advocated by many researchers. See, e.g., Josephine R. Potuto, A Model Proposal to Avoid Ex-Offender Employment Discrimination, 41 OHIO ST. L.J. 77, 101-06 (1980) (proposing the direct relationship
test and enumerating criteria for meeting the test); Kohler, supra note 63, at 1431-32 (suggesting the job-relatedness test and endorsing giving applicants the opportunity to state why
he should be hired in spite of the conviction). In addition, the direct relationship test is already used by the EEOC in enforcing Title VII and in the Civil Service Reform Act, Pub. L.
No. 95-454, 92 Stat. 1111 (1978) (codified as amended in titles 5, 10, 15, 28, 31, and 39
U.S.C. (2000) and 42 U.S.C. (2000)), for the purposes of imposing disciplinary action on
federal employees. See discussion supra note 72.
218. See supra note 98.
Reaching a Compromise
criminatory practices.219 At the same time, private employers must be protected from the uncertainties of judicial second-guessing when they, in good
faith, attempt to apply the direct relationship test, but ultimately refuse to
hire an applicant.220 Following this logic, private employers should not be
charged with the task of determining the degree of one’s rehabilitation so
that their smallest misstep—on either side of the razor-thin line of correctness—would bring grim consequences to their businesses.221
To account for these concerns, the Michigan anti-discrimination statute should be based on a categorical approach222 which does not require
private employers to consider individual circumstances of an offense or
conduct an in-depth inquiry into the extent of rehabilitative efforts of an
applicant.223 At the same time, employers will have to respect the courtissued orders lifting ex-offenders’ disabilities. Defined in this way, the test
will promote practical and speedy determinations by employers, yet remove
219. For instance, the Michigan Senate has recently proposed steps to prevent discrimination against people with credit difficulties. See discussion supra note 205. Speaking
more broadly, the direct relationship test weeds out excessive collateral consequences, mandates an individualized assessment of each offender’s case, and opens an avenue for relief for
those who have been wronged by employers’ misconceptions. See Travis, Invisible Punishment, supra note 55, at 34-36 (focusing the complexity of the proposed collateral consequences reforms around the principles of proportionality, individualized justice, provision of
avenues for relief, and embracing the goal of reintegration of ex-offenders).
220. The predicament that employers are placed into by virtue of the combination of
the direct relationship test on the one hand, and the law of negligent hiring on the other, is
exemplified by the advice given to corporate employers by one employment attorney: “[T]he
best test of any course of action . . . is: would six ordinary people think this is reasonable
under the circumstances? If the answer is yes, you and your company should prosper.”
Diana Rousseau Belbruno, Selected Negligence Problems in Employment Law, in HANDLING
CORPORATE EMPLOYMENT PROBLEMS 341, 406 (Pract. L. Inst. 1991). Naturally, this kind of
an indeterminate standard places employers into an irresolvable and unnecessary conundrum
and needs to be revised. See Scales, supra note 147, at 434-35 (suggesting that employers
should be given “a presumption of good faith” to soften the impact of the inherent tension
between the state anti-discrimination measure and the negligent hiring doctrine).
221. As discussed in Subsection III.A.1, courts are much better qualified to make
these determinations by way of issuing orders attesting to ex-offenders’ rehabilitation. Cf.
Haerle, supra note 28, at 1319-20 (noting that employers are ill-equipped to estimate the
extent of ex-offender’s rehabilitation). In turn, once such an order has been issued to an exoffender, employers can be validly held responsible for the refusal to hire a rehabilitated exoffender because of a previous conviction.
222. See County of Milwaukee v. Labor & Indus. Review Comm’n, 407 N.W.2d 908
(Wis. 1987), for an example of the elements-only, categorical approach to conviction-based
anti-discrimination provision in Wisconsin.
223. Although rehabilitation may still be one of the factors to be considered, see infra
note 236, requiring more would lead to a “full-blown factual hearing” standing in the way of
the “confident, timely and informed” decision by an employer. County of Milwaukee, 407
N.W.2d at 917. Conducting such “full-blown factual hearing[s]” is the proper domain of the
courts issuing certificates removing ex-offenders’ disabilities. Id.
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the potential for subjectivity from their decisions.224 Plainly, the test will
force employers to estimate a threat posed by a certain offense and an opportunity for the commission of a similar offense in a given position.225
Evaluating the elements-only formulation of the test, critics suggest
that the deference afforded to employers’ decisions would effectively eviscerate the protective force of the test.226 To prevent such a result, the Michigan legislation should provide for a written explanation of the denial—
similar to the one the state demands from a licensing body denying an applicant227—and for the criminal record check to be conducted only after the
conditional offer of employment has been extended.228 Conducting a criminal record inquiry after having made the substantive employment decision
and having to explain, in written form, the reasons for changing this initial
decision will counterbalance the ease of judicial review and prevent employers from advancing after-the-fact rationalizations of denials that could
have been raised if the sequence were reversed.
2. Factors Measuring Direct Relationship—Not Too Personal, but
Personal Enough
Unquestionably, the Michigan statute must set forth either the definition of the term “direct relationship,”229 or, at a minimum, the factors for
224. Employers will be spared the “conundrum of limitless factors to be compared,
weighed, and shuffled” because, under this interpretation, employers will only have to compare the elements of a criminal offense, proven beyond reasonable doubt in the court of law,
with the categorical needs of particular employment. Hruz, supra note 64, at 850. But see
Myers, supra note 214, at 918-19 (arguing that merely considering the “opportunity for criminal behavior” at a certain position and “the reaction to responsibility evidenced by the conviction” is not enough).
225. Licensing actions, however, should be treated differently. Because licensing
bodies are better equipped and have more resources to pass judgment on the evidence of
rehabilitation and on the individual circumstances of each offense, they must be held to a
higher standard of inquiry than private employers. In particular, licensing bodies should
presume rehabilitation of applicants and bear the burden of rebutting this presumption in
PRISONERS § 23-8.3 (1986) (charging states with the burden of proving “in each individual
case that the disability or penalty is necessary to advance important governmental or public
226. See, e.g., Myers, supra note 214, at 918-19 (expressing fears that the simplified
per se approach will undercut the goals of the direct relationship test); see also County of
Milwaukee, 407 N.W.2d at 919 (Abrahamson, J., concurring) (fearing that a high level of
generality in interpreting the circumstances of an offense will “eviscerate the statute”).
227. See discussion of the written explanation requirement supra note 168.
228. A similar scheme exists in Hawaii, the only state to prohibit inquiry into an
applicant’s criminal record before the conditional offer of employment has been extended.
For a detailed discussion of the statute, see supra note 212.
229. In addition to the “direct relationship” test, the New York statute contains the
“unreasonable risk” test as an alternative basis for the lawful exclusion of ex-offenders from
Reaching a Compromise
employers’ guidance in determining whether such direct relationship exists.230 In addition to expressly reaffirming the policy of the state toward
rehabilitation of ex-offenders,231 the statute should outline for employers a
limited number of factors to rely on in determining whether the conviction
is sufficiently related to the prospective employment so that an employer
would be justified in refusing to hire an applicant.232 The Model Sentencing
and Corrections Act233 provides a well-balanced list of factors, neither overly broad nor overly narrow, that may effectively and justifiably constrain
employers’ judgment when hiring ex-offenders.234 The Act delineates the
following five factors as the sole basis for employers’ decisions:
(1) whether the occupation, profession, or educational endeavor provides an opportunity for the commission of similar offenses;
(2) whether the circumstances leading to the offense will recur;
(3) whether the person has committed other offenses since the conviction or his
conduct since conviction makes it likely that he will commit other offenses;
(4) whether the person seeks to establish or maintain the relationship with an individual or organization with which his victim is associated or was associated at the
time of the offense; and
(5) the time elapsed since release.235
employment. See N.Y. CORR. LAW § 752 (McKinney 2003). The two tests are closely interrelated, and, depending on the definition, the latter can be subsumed by the former. For
instance, such would be the case if the direct relationship test would require an evaluation of
“whether the occupation, profession, or educational endeavor provides an opportunity for the
commission of similar offenses.” MODEL SENTENCING AND CORR. ACT § 4-1005(c)(1)
(1978). See discussion infra pp. 1095-1096.
230. In fact, a recent proposal on how to improve the New York anti-discrimination
model insisted on supplying the precise definition for the term “direct relationship” in addition to simply enumerating factors to be considered. See REPORT AND RECOMMENDATIONS
TO NEW YORK STATE, supra note 156, at 48.
231. Florida Governor’s Executive Order No. 06-89 is instructive in this respect.
Along with announcing the policy of Florida to reintegrate ex-offenders, the Order requires
all executive agencies in the State to reevaluate their policies towards employment of exoffenders and to prepare reports on the existing disqualifications and their justifications. See
Exec. Order No. 06-89 (State of Fla. Office of Governor 2005), available at
232. Listing the pertinent factors is important in limiting capricious and bias-driven
decisionmaking of employers, many of whom are inherently averse to hiring ex-offenders.
Otherwise, the broad and vague provisions of the statute leave too much room for employers’
maneuverability, which impedes the statute in achieving its goal. Cf. Lau, supra note 76, at
735 (urging that Hawaii courts use the factor-enumeration approach of New York, Minnesota, and Wisconsin as the guidance for interpreting the Hawaii legislation, which lacks any
factors for employers’ or courts’ guidance).
234. See Potuto, supra note 217, at 103-06 for the support of the Model Sentencing
and Corrections Act guidelines.
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Consistent with the elements-only approach advocated in this Comment, no factor in this test requires the consideration of particular circumstances of an offense, personal traits of a particular ex-offender, or the precise degree of her rehabilitative efforts.236 Rather, the test focuses on the
generic relatedness of a conviction to a particular type of employment and
on the risks posed by placing individuals with certain propensities in positions presenting opportunities for realizing these propensities. The last factor of the test—the passage of time since the date of the last conviction or
the date of the release—calls for employers’ tolerance towards hiring exoffenders with convictions in the distant past. While the principle of relatedness remains in force even after a significant period of time, the scope of
the direct relationship test becomes more pointed as an individual continues
to lead a crime-free life.237
Another salient feature of the test under the Model Act is the absence
of any exemptions for law enforcement agencies and safety-sensitive positions, as well as legal and medical professions.238 Indeed, such exceptions
are duplicative because the five factors of the test will already weed out the
applicants with unbecoming qualifications on the basis of the direct rela236. Arguably, the third factor of the test—whether the person has committed other
offenses since conviction or her conduct makes it likely he or she will commit other offenses—operates to include rehabilitation into the scope of employers’ consideration. However,
the import of this factor, correctly understood, is to allow employers to consider the number
of previous convictions and justify refusal to hire a multiple offender, even if her convictions
are unrelated to the position sought. Potuto, supra note 217, at 103-04. To limit the negative
impact of this factor, the legislature should modify its applicability, so that it would become
operational only with persons who have been convicted three or more times. This change
will properly accommodate concerns of employers over the reputation of their businesses
without sacrificing the state’s objectives of curbing employment discrimination against exoffenders.
237. Thus, an employer who can justifiably refuse to hire an applicant with the
vaguely related, but fresh conviction may no longer do so if an applicant has had a prolonged
period of crime-free conduct. In the latter circumstance, a more direct and central connection
between the conviction and the prospective employment or occupation will be necessary to
justify an employer’s refusal to hire.
238. Conversely, many states—including those with elaborate anti-discrimination
provisions—exempt these positions and occupations from the purview of their ex-offender
statutes. See, e.g., FLA. STAT. ANN. § 112.011(2)(a) (West 2002) (excluding law enforcement
and correctional agencies from the operation of the statute); N.M. STAT. ANN. § 28-2-5 (LexisNexis 2000) (clarifying that the statute does not apply to law enforcement positions); N.Y.
CORR. LAW § 750(5) (McKinney 2003) (exempting law enforcement positions from the
scope of the term “employment” in the definitional section of the statute); see generally
Freisthler & Godsey, supra note 117, at 543 (recognizing and endorsing the stance of many
states to retain automatic disqualification of felons from law enforcement positions); cf.
Funk, supra note 147, at 306 (suggesting, in the context of youthful records expungement,
that “law enforcement officials, academic researchers, day care professionals, high school
administrators, and employers who seek employees for safety-sensitive positions” should be
able to view the complete record of an applicant, including juvenile offenses).
Reaching a Compromise
tionship test.239 A different approach would therefore be unwarranted, conducive to the current reign of anti-ex-offender attitudes, and—at least in the
context of occupational licensing—perhaps, even unconstitutional.240 The
test is specific enough to produce real effects. In tandem with the provision
for court-issued removal orders and other remedies suggested in this Comment, it will be a significant step in the right direction.241
C. Accessibility of Criminal Records and Their Effect on Duty in Negligent
Many researchers find the solution to the problem of ex-offenders’
discrimination in sealing from public view or altogether erasing criminal
records of ex-offenders.242 To a limited extent, Michigan has also utilized
this approach in its expungement provision empowering successful applicants to deny the existence of previous convictions.243 However, in the vast
majority of cases, Michigan practices wide accessibility of records to the
public, including even the records of one’s arrests, 244 the reliance on which
is prohibited for the purposes of private employment and licensing.245
239. Accord Potuto, supra note 217, at 97 (endorsing the Act’s approach and analyzing the drawbacks of exempting law enforcement and legal profession categories from the
ambit of the direct relationship test).
240. See Aukerman, supra note 64, at 39-43, 47-51, 65-69, 85-87 (analyzing relevant
precedents and concluding on their basis that in the absence of direct relationship between a
conviction and the licensed activity, records-based disqualifications violate either the Equal
Protection Clause or the Due Process Clause of the Constitution).
241. The interrelation of the provision for court-issued removal orders and of the exoffender anti-discrimination statute demonstrates the holistic perspective on ex-offender
reintegration, see supra note 140, at a micro level. At a macro level, the holistic approach
should be exemplified by the State’s commitment to reintegration of ex-offenders both at the
front and back ends of the criminal justice process. See Pinard, supra note 140, at 632 (urging to “synergize . . . [the collateral consequences and reentry] components and to develop
integrated perspectives that accurately reflect the scope of their interlocking issues”).
242. See, e.g., Gregory A. Forest, Sealing the Record: Helping Rehabilitated FirstTime Drug Offenders to Get Jobs, 35 MCGEORGE L. REV. 597, 604 (2004) (supporting the
California legislation proposing to seal criminal records of successful drug divertees); Partners in Justice: A Colloquium Developing Collaborations Among Courts, Law School Clinical Programs, and the Practicing Bar Appendix, 30 N.Y.U. REV. L. & SOC. CHANGE 739,
788 (2006) [hereinafter Partners in Justice Colloquium] (endorsing the proposal of Governor
Pataki to conditionally seal records of certain drug offenses); EMPLOYMENT SCREENING FOR
141, at 16 (substituting the independent access of private employers to criminal records with
the results of standard “fitness determination” inquiry prepared by an agency having exclusive access to criminal records).
243. See discussion supra note 103.
244. See discussion supra Subsection II.B.3.
245. MICH. COMP. LAWS § 37.2205 (2001); see discussion supra note 11 and accompanying text.
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1. The Saga of Criminal Records: Is Sweet Lie Better Than Bitter
To revitalize the prohibition on using one’s arrest record in employment and licensing decisions, the state should either strictly regulate the
dissemination of records to the public, prohibiting release of arrest records
to private parties,246 or altogether prevent entering the records of arrests into
the public domain.247 Either of these changes will give teeth to the statutory
ban on using arrest records in hiring and align Michigan with the progressive views on limiting collateral consequences of arrests.248
Nevertheless, the state should preserve its current openness about revealing criminal records for validly-adjudicated convictions. This openness
is consistent with the truth-seeking nature of our criminal system, and its
value is so great that it can not be outweighed by the interests of exoffenders’ protection. 249 Moreover, concealing criminal records is an ineffective method of dealing with employment discrimination against exoffenders because it is unable to account for unexplained gaps in applicants’
work history or prevent the dissemination of records by commercial providers250 and other individuals legitimately accessing court records of criminal
246. The difficulties of this route stem from the participation in the dissemination
process of private investigative companies and commercial criminal history providers who
fail to sort out the records that may be released from those that may not. See EMPLOYMENT
CONGRESS, supra note 141, at 21-23 (drawing attention to inaccuracies in commercial databases and calling for tightening federal control over entities performing background searches,
including permitting individuals to contest the validity of their convictions at a hearing).
Yet, this task is not insurmountable as long as criminal data providers are subject to enforceable standards for accuracy and selective release of criminal records to the public.
247. See Davis, supra note 191, at 875 (debunking the notion that arrest records are
necessary for law enforcement purposes by emphasizing that “nearly every other civilized
country in the world seems to maintain an equal or better crime rate than the United States
without the assistance of arrest record discrimination”).
248. For instance, New York, a front runner in the sphere of criminal rehabilitation, is
currently considering removing records of arrests from individuals’ “RAP” sheets, pointing
to the negative impact these records have on the “crystallization of a plea offer or sentence.”
Partners in Justice Colloquium, supra note 242, at 809.
249. See Marc A. Franklin & Diane Johnsen, Expunging Criminal Records: Concealment and Dishonesty in an Open Society, 9 HOFSTRA L. REV. 733, 749 (1981) (“This
deliberate deception of the public violates our longstanding and generally unquestioned
preference for truth over falsity.”); see also Bernard Kogon & Donald L. Loughery, Jr., Sealing and Expungement of Criminal Records—The Big Lie, 61 J. CRIM. L. CRIMINOLOGY &
POL. SCI. 378, 385 (1970) (“In trying to conceal a record we seek to falsify history—to legislate an untruth.”).
250. See discussion supra note 141; see also Franklin & Johnsen, supra note 249, at
744-47 (enumerating various difficulties associated with erasing one’s criminal record and
criticizing the method for its sporadic effectiveness in combating employment discrimination
against ex-offenders).
Reaching a Compromise
proceedings which remain public regardless of sealing.251 Apart from these
flaws, sealing is said to lead to the aggravation of other forms of discrimination in which employers engage in the absence of criminal background information.252
In sum, concealing criminal records is a poor solution for employment-related problems of ex-offenders.253 Rather, eliminating records-based
employment discrimination must be grounded in truth: a job applicant must
straightforwardly admit the existence of previous convictions on her record,
but the effect of this admission should be softened by the aggressive enforcement of the anti-discrimination statute based on the direct relationship
test and by placing, upon the issuance of an order removing ex-offender
disabilities, of a notation upon one’s record regarding the legal effects of
such an order. In combination, these measures will erect sufficient safeguards against employment discrimination vis-à-vis ex-offenders.
2. Expansion of Duty in Negligent Hiring Cases
Besides being accessible, criminal records must be made widely available to all employers.254 To achieve this goal, Michigan should consider
supporting and expanding the current federal government efforts in provid251. To complicate matters further, expungement of records presents constitutional
challenges of speech and press restrictions flowing out of the principle enunciated in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), that criminal trials may not be
closed as a matter of course. Id. at 573-74; see generally Franklin & Johnsen, supra note
249, at 747-48 (discussing the effect of Richmond Newspapers). Although sealing criminal
records is usually perceived less problematic than an outright expungement, even sealing
may be viewed as impermissible. See, e.g., People v. Sharman, 95 Cal. Rptr. 134, 135 (Cal.
Ct. App. 1971) (refusing to seal the plaintiff’s criminal record under the state’s antidiscrimination statute because doing so is beyond the powers of the court); see generally
Richard J. Peltz et al., The Arkansas Proposal on Access to Court Records: Upgrading the
Common Law with Electronic Freedom of Information Norms, 59 ARK. L. REV. 555, 604
n.295 (2006) (observing the preference for sealing criminal records rather than expunging,
and analyzing relevant precedents from different jurisdictions).
252. See supra note 106 for the results of empirical studies by Holzer et al., proving
the connection; see also Franklin & Johnsen, supra note 249, at 769 (noting that “expungement may . . . encourage wider discrimination against discretely identifiable groups”).
253. Another argument in support of employers’ open access to criminal records is
that these records afford employers an opportunity to look at the nature of the offense in
question—whether it was violent or non-violent, drug-related or not—and make their determination based on these distinctions. See Holzer et al., Employment Barriers Facing ExOffenders 15 (Urban Institute Reentry Roundtable, May 19-20, 2003), available at [hereinafter Holzer et al., Employment Barriers Facing Ex-Offenders] (observing that providing employers with an opportunity to assess the type of the crime underlying the conviction may improve ex-offenders’
chances of being hired).
254. See discussion of criminal records availability in Michigan supra Subsection
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ing free background checks to specific-needs entities255 to include all employers conducting a background search on prospective employees.256 In
any event, the cost of a background check should not be borne by applicants, but rather, by employers who avoid negligent hiring liability, thus
realizing savings by conducting a background examination.257
With the problem of unduly burdensome costs of criminal record
checks addressed, Michigan should then expand the scope of duty in negligent hiring cases to uniformly require all employers to conduct background
investigations of all prospective employees.258 Such a uniform application
of duty will provide the state with the long-desired bright-line rule in negligent hiring cases,259 and remove current anomalies rewarding employers’
ignorance.260 Likewise, the recognition of the positive duty to investigate
employees’ background is likely to yield favorable results in the sphere of
workplace violence prevention, better develop Michigan’s vague negligent
hiring jurisprudence, and provide meaningful compensation to the victims
of employers’ careless practices.261 In turn, through the operation of this
255. See discussion supra note 125 for the description of the pilot U.S. Department of
Health and Human Service program performed by Michigan State University. The state
could build on this program and expand its application to all employers willing to hire exoffenders and attempt to avoid potential negligent hiring liability.
256. As one writer proposes, the state could consider “running a restricted web site
for business owners to access databases that list the criminal records of individuals.” See
Scales, supra note 147, at 436.
RECOMMENDATIONS TO CONGRESS, supra note 141, at 18-19 (recommending that federal law
impose an obligation to pay full costs of fingerprinting and processing criminal records on
employers and prevent employers from trying to recoup these costs from employees). With
the criminal record check costing only ten dollars, supra p. 1074, employers realize additional savings from the limitation that the inquiry into an applicant’s background could be conducted only after the conditional offer had been extended.
258. For similar suggestions, see Elizabeth A. Gerlach, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal
Background Checks in Hiring, 8 U. PA. J. LAB. & EMP. L. 981, 995-97 (2006) (arguing for
expanding the use of background checks either by statute or by altering the concept of duty
in negligent hiring cases); Leavitt, supra note 15, at 1314-15 (calling for imposing the duty
to conduct background checks on all employers); Sullivan, supra note 35, at 582-83 (proposing that a requirement to ascertain applicants’ criminal histories apply to all business owners
with the exception of smaller employers); Scales, supra note 147, at 435-36 (supporting the
uniform requirement of background checks to close a current loophole in negligent hiring
law by way of which employers may claim ignorance of the applicant’s background to avoid
259. See Wais, supra note 20, at 263 (underscoring the need for a better definition of
the contours of the negligent hiring tort in Michigan and arguing that the absence of “identified and attainable standards” for liability increases employers’ antipathy towards hiring exoffenders).
260. See discussion supra Section I.B.
261. In addition to clarifying the scope of negligent hiring duty, Michigan courts
should also address the problems of causation in negligent hiring cases. See supra Section
Reaching a Compromise
requirement, employers are likely to become more cognizant of their responsibilities in investigating one’s background and ipso facto more cognizant of the existence in the state of ex-offender-supportive measures.262
And, although the expansion of the scope of investigative duties may seem
counterintuitive to some,263 on balance employers’ fears of uncertainty and
judicial second-guessing are by far more inimical to employment prospects
of ex-offenders than a well-defined and predictable rule combined with firm
anti-discrimination mechanisms.
D. Fiscal Therapy: State Wage Subsidy for Ex-Offenders As a Supplement
to Federal Tax and Bonding Assistance
Because much of employers’ hesitation in hiring ex-offenders is generated by employers’ skepticism about ex-offenders’ honesty and financial
responsibility,264 fears of thefts,265 and, in some instances, ex-offenderexclusionary bonding policies,266 financial incentives protecting employers
I.C. To enhance predictability and uniformity of the outcomes in these cases, courts of the
state should strive towards determining proximate causation as a matter of law. Doing so
will make the negligent hiring jurisprudence more cohesive and predictable. These qualities
of the doctrine would contribute to creating a favorable climate for employers’ hiring of exoffenders in Michigan.
262. Indeed, ensuring a better awareness of employers about ex-offender-related
regulations enacted in a state has been a leitmotif of many rehabilitative proposals. See, e.g.,
REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 29 (concluding
that employers’ ignorance of both governing laws and of available incentives to employ exoffenders is one of the greatest barriers to employment of ex-offenders); Leavitt, supra note
15, at 1313-14 (discussing the obstacles posed by ignorance of both employers and potential
ex-offender employees about their rights and responsibilities in the employment process);
Second Chance Act of 2005, H.R. 1704, 109th Cong. § 7 (2005) (authorizing Secretary of
Labor to take “such steps as are necessary . . . to educate employers about one-stop centers,
existing incentives, including the Federal bonding program, for the hiring of former Federal,
State, or county prisoners and tax credits”).
263. See Michigan cases discussed supra notes 29, 34-35. For a catalogue of possible
challenges to laws mandating background checks—including anti-discrimination challenges
and challenges on constitutional grounds—see Gerlach, supra note 258, at 993-95.
264. In addition to direct damages potentially caused by financial dishonesty of exoffenders and increased workers’ compensation premiums, employers hiring ex-offenders
also have to worry about liability to third parties harmed by employees who were hired despite their known propensities to commit economic crimes. See discussion supra note 133.
265. These fears are not without grounds. For instance, twenty-three percent of all
convictions for financial institution frauds secured by the U.S. Department of Justice in 2002
involved bank insiders. Harris & Keller, supra note 5, at 20. In a case of a private employer,
the stakes are especially high since approximately thirty percent of all business failures are
said to be attributed to an employee theft. Funk, supra note 147, at 303.
266. One estimate suggests that as many as twenty-five percent of all commercial
office jobs have bonding requirements. GERHARD E. EHMANN & PAUL SULTAN, THE
EMPLOYMENT OF PERSONS WITH ARREST RECORDS AND THE EX-OFFENDER 30 (1971). Bonding is ordinarily not available to employees who have committed “dishonest or fraudulent”
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from these economic risks should be an integral part of the state’s overall
strategy.267 The economic assistance currently available to ex-offenders in
Michigan—the U.S. Department of Labor Fidelity bonding program268 and
the federal Work Opportunity Tax Credit Program269—is inadequate to address these employers’ concerns.270 These federal programs cover only a
acts, so commercial bonding is largely denied to ex-offenders. See Katrina Grider, Employer
Liability Under FIRREA, 109 BANKING L.J. 129, 136-37 (1992). A separate disqualification
from employment based on dishonest or fraudulent acts is imposed by the Financial Institutions Reform, Recovery and Enforcement Act, 12 U.S.C. §§ 1829-33e (2000), that prohibits
individuals convicted of such acts from directly or indirectly serving as an institutionaffiliated party or owning, controlling, or otherwise participating in the affairs of an insured
depository institution. 12 U.S.C. § 1829 (2000); see Grider, supra, at 129-30. Yet, bonding
of ex-offenders, when available, has yielded excellent results. See, e.g., Meltsner et al.,
supra note 144, at 893 (citing the results of a survey of the bonding assistance program documenting that, for the purposes of bonding, “the average ex-offender is a better risk than
non-offender employees”); EVERY DOOR CLOSED, supra note 151, at 22 (citing the information provided by the federal bonding program that ninety-nine percent of about 40,000
applicants who have obtained jobs because of bonding “turned out to be honest workers”).
267. As a “demand-side” program aimed at reducing employers’ costs in hiring exoffenders, these financial incentives complement the “supply-side” programs that focus on
improving ex-offenders’ professional and educational competency and thus improving their
attractiveness to employers. Bushway & Reuter, Labor Markets and Crime Risk Factors,
supra note 184, at 199.
268. The free-of-charge bonding assistance program, which is administered by the
Michigan Works! service center, provides coverage ranging from $5,000 to $25,000, with no
deductible amount, for the first six months of an ex-offender’s employment. State of Michigan, Michigan’s Workforce, Fidelity Bonding Program: A Job Placement Tool to Help Employers and Job Seekers (Mar. 20, 2002),,1607,7-19229943_31422-21154--,00.html. The coverage is limited to insurance against stealing by
theft, forgery, larceny, or embezzlement, and does not encompass any other types of liability.
269. Under this program, an employer of an ex-felon may receive as much as $2,400
per new hire, which translates into forty percent of qualified first-year wages for those employed at least four-hundred hours and twenty-five percent for those employed at least onehundred-twenty hours. State of Michigan, Department of Labor, Nine New Ways Employers
Can Earn Federal Income Tax Credits, The credit is limited to ex-felons who are members of low income
families and who have been hired during the first year after their conviction or release. Id.
In comparison, the Welfare-to-Work Tax Credit, for which ex-offenders as a group are not
eligible, rewards employers for hiring long-term welfare recipients with the sum of $8,500.
Id. A similar program, offering up to $2,100, once existed solely for hiring ex-offenders, but
was eliminated in the late nineties. See Symposium, A Fork in the Road: Build More Prisons
or Develop New Strategies to Deal with Offenders, Adult Supervision, 23 S. ILL. U. L.J. 385,
405-06 (1999) (describing the former program and proposing to bring the level of the current
Work Opportunity Tax Credit coverage to the level of coverage under the Welfare-to-Work
270. Empirical research shows that about sixty-five percent of employers would not
hire an ex-convict. See research data cited supra note 137. Yet, as many as fifty-one percent
of employers indicated their willingness to hire ex-offenders if they were bonded. EVERY
DOOR CLOSED, supra note 151, at 22. Indeed, employers would be attracted by tax credits
Reaching a Compromise
limited number of ex-offenders, are not well-known among employers, and
do not shield employers from potentially devastating negligent hiring liability.271 To fill the gaps in the federal programs,272 Michigan should provide a
solid incentive for hiring ex-offenders by implementing an independent
wage subsidy program similar to the one currently considered in New
York.273 In addition, the state should subject the bonding practices of commercial insurers to the general operation of the “direct relationship” test and
presumptively prohibit bonding disqualification of ex-offenders who received court-issued removal orders.274 Harmonizing the behavior of commercial bonding businesses with the state’s ex-offender anti-discrimination
goals will defeat one more artificial barrier on the way towards meaningful
employment of ex-offenders in Michigan.
Like the New York proposal, the Michigan wage subsidy program
should be targeted exclusively at ex-offenders on the one end, and geared
towards small businesses on the other.275 Some areas of the state may be
subsidized heavier than others, but in any event, employers should be reexceeding $2,000 per employee or by the State assuming responsibilities for health and other
benefits of employees, as opposed to the State merely supplying tax credits. REPORT AND
29, 34 (criticizing the bonding program for its limited scope and concluding that available
financial incentives will not make employers reconsider their cautious hiring practices);
Holzer, Employment Barriers Facing Ex-Offenders, supra note 253, at 17 (noting that employers’ “takeup” of both bonding programs and the Work Opportunity Tax credits is very
low and that, despite growing prison population, “purchases of bonds have actually declined
over the past few decades”); EVERY DOOR CLOSED, supra note 151, at 22 (criticizing the
bonding and tax credit programs as providing inadequate incentive for employers to hire exoffenders); Miller, supra note 75, at 348-55 (addressing the problems associated with bonding and tax credit programs by proposing a State-funded insurance program for ex-offenders
that would insure employers against negligent hiring liability using the “direct relationship”
272. Naturally, federal programs’ drawbacks need to be corrected at a federal level,
and the state can only consider steps to supplement these programs. See, e.g., Pager, supra
note 12, at 511-12 (proposing to remedy ineffectiveness of federal programs by imposing
caps on negligent hiring liability and calling for federal government to “assume federal responsibility for a larger share of damages”).
13-15 (proposing to create a $25 million Wage Subsidy Program for formerly incarcerated
individuals that could serve, depending on the duration and hourly wage, anywhere from
1,030 to 6,302 people).
274. See Meltsner et al., supra note 144, at 893-94 (proposing to eliminate arbitrary
discrimination by bonding companies and preclude them from using criminal record as a
“subterfuge for denying jobs to ex-offenders for other reasons”).
(proposing to direct the thrust of the New York’s wage subsidy program to seven neighborhoods with the highest reentry rates). To direct a greater share of subsidies towards small
businesses, which are most vulnerable in hiring ex-offenders, the state could regulate the
amount of awarded subsidies in inverse proportion to the size of a subsidized entity. See id.
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quired to make a good-faith effort in keeping employees beyond the subsidized period.276 The program should last anywhere from six months to one
year, a period long enough for ex-offenders to overcome employers’ unfounded biases and to demonstrate their true abilities.277
Undermining the possibility of the proposed subsidy is the lack of
funds for its implementation. The immediate difficulty in obtaining funds
is, however, not dispositive: these expenditures can be offset by the tremendous long-term savings realized if ex-offenders avoid entering the welfare
system or returning back to prisons, and start meeting their child support
responsibilities.278 What is more, benefits stemming from eliminating
crimes and the attendant costs to the victims add up nationwide to hundreds
of billions of dollars, and, therefore, well justify the spending.279 Finally,
given the tight labor market in the state280 and the social costs of neglecting
the problem of ex-offenders’ employment, a wage subsidy program281 is a
worthwhile investment that will pay off in the future.282
276. See id. Further, the program should prohibit employers from “cycling several
individuals though one wage-subsidized position.” Id.
277. Along with affording ex-offenders the opportunity to get “a foot in the door” and
obtain some employment experience, the program also allows employers to “try before they
buy” and to thus lower their turnover rates. Id. at 15.
278. According to the estimates of the Special Committee on Collateral Consequences of Criminal Proceeding of the New York bar, the accomplishment of these tasks in the
state of New York will save taxpayers $3.615 million for every 100 people. Id. at 4. Paying
child support presents a problem in itself, for it creates a disincentive for poor fathers to
obtain formal employment and prompts them to seek “under the table” work to avoid this
additional “tax” on earnings. See Holzer et al., Employment Barriers Facing Ex-Offenders,
supra note 253, at 18 (proposing to modify child support policies for poor ex-offender fathers and to increase wage subsidies and tax credits for this group).
Of course, not all benefits to society are quantifiable. Such damages as pain and suffering,
loss of quality of life, and emotional distress attest to that truism the best.
280. However, the pressures of the tight market are expected to subside as the baby
boomers retire. The demand in workers hence created is expected to have a positive impact
on the employability of ex-offenders. See Holzer et al., Employment Barriers Facing ExOffenders, supra note 253, at 19 (predicting that, in the context of the increased demand for
labor, financial incentives for hiring ex-offenders will carry more weight with employers).
281. Wage subsidies is a powerful method of encouraging ex-offenders’ employment,
and is the preferred method of financial incentives among employers. REPORT AND
RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 36 (reporting that ideally, employers would prefer to receive twenty-five to fifty percent of employees’ salary in wage
subsidies, $2,000-3,000 per employee in tax credits, or government-provided benefits for up
to one year).
282. Once again, one of the most essential conditions for the efficacy of the program
lies in widely informing employers of its existence and in facilitating the application process.
Today, generalizing the New York experience, employers are largely unfamiliar with the
specific incentives available to them for hiring ex-offenders. Id. at 36. This problem could
be resolved through the use of an intermediary organization, see infra Section III.E, that
would inform employers of available incentives and help them obtain these incentives.
Reaching a Compromise
E. An Intermediary Organization for Ex-Offenders—A Missing Link in ExOffenders’ Employment
Tax credits, bonding assistance, and wage subsidies may offer strong
incentives for employers to hire ex-offenders, but may nevertheless not be
enough to alter the existing hiring patterns of employers drastically.283 To
enhance the effectiveness of these support mechanisms, Michigan should
establish an intermediary organization specifically charged with handling
the issues of ex-offender reintegration and working closely with potential
employers to address their concerns in hiring ex-offenders.284
The organization should function as a liaison between employers and
ex-offender employment applicants establishing contacts with the willing
employers, exploring employers’ personnel needs, and assessing the potential fit between a particular employer and a particular ex-offender.285 This
mechanism may allay some of employers’ fears of negligent hiring liability,
especially if hiring through an intermediary organization is presumed to
exhaust the extent of investigative duty in negligent hiring cases.286 In addition, through the provision of at least short-term transitional employment,287
36 (summarizing the results of a survey indicating that financial incentive programs encourage, but do not completely convince employers to hire ex-offenders, and suggesting that
“[f]inancial incentives are most attractive when offered in conjunction with the role of intermediary organizations”); see also Holzer et al., Employment Barriers Facing Ex-Offenders,
supra note 253, at 17-18 (recognizing that intermediary organizations could enhance the
positive effects of financial assistance on employers’ practices in hiring ex-offenders).
284. Such centers already exist in several states. Among the most successful are the
New York’s Center for Employment Opportunities, the Cleveland Works in Ohio, and the
Safer Foundation in Chicago. See M. ROBIN DION ET AL., REACHING ALL JOB-SEEKERS:
EMPLOYMENT PROGRAMS FOR HARD-TO-EMPLOY POPULATIONS 29-37 (1999), available at (endorsing ex-offender-specific
intermediary organizations and describing each of them in detail). Michigan Works!, a
Michigan agency dealing with ex-offenders’ support, caters mainly to other disadvantaged
groups of job seekers and works with ex-offenders only on a peripheral basis. See Michigan
Works!, Education, Training and Employment,
(last visited Feb. 1, 2008) (listing only two programs specifically targeting ex-offenders—the
Pathways Employment Program and New Way In Inc., both administered only by referral).
285. Pager, supra note 12, at 510-11.
286. See id. (“Intermediaries can help to reduce employers’ concerns about hiring exoffenders by vouching for the individual in question and by providing additional supervision
capabilities to ensure the new employee follows through.”); REPORT AND RECOMMENDATIONS
TO NEW YORK STATE, supra note 156, at 21 (“‘[E]mployers are looking to other agencies to
share the burden of responsibility.’”).
287. For instance, the New York Center for Employment Opportunities employs exoffenders in work crews performing low-skill, short-term projects for the interested customers. DION ET AL., supra note 284, at 30. Participants receive about thirty-five dollars per day
and much more in non-monetary terms–by building their resumes and acquiring the sense of
responsibilities and expectations in the employment context. Id.
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intermediary organizations can neutralize employers’ negative attitude towards hiring recently released individuals without any post-release employment.288 Likewise, such an intermediary organization can be instrumental in improving the soft skills of ex-offenders that employers commonly
regard as extremely important.289 Still another important function that an
intermediary organization may serve is informing employers of the financial
incentives available to them and assisting them with the necessary paperwork during a fast, one-stop visit.290
Although finding funding for this initiative may be problematic, the
New York Center provides a good example of financing the project through
the support of charitable foundations and corporate entities.291 Money for
intermediaries could also come from rechanneling the funds allotted to ineffective vocational training292 or from other state-sponsored programs.293
288. Research demonstrates that employers are particularly opposed to hiring exoffenders without any post-release work experience, and that this aversion subsides as applicants gain some post-release employment. Holzer et al., supra note 106, at 26 (conclusions
based on evidence from Los Angeles).
289. See supra note 135. Along with soft skills, intermediaries need to assist exoffenders with preparing themselves for an interview—composing a resume, learning about
the interview process, getting ready for responding to questions about convictions. In contrast, the programs targeting vocational skills of ex-offenders have generally proved to be
ineffective. See generally Harrison & Schehr, supra note 3, at 51-52 (overview of scholarly
literature coming to a consensus that federal programs for vocational guidance were “merely
bureaucratic spin machines, used for political gain, that yielded no reduction in recidivism or
an improved job outlook for targeted groups”); see also Michael E. Borus et al., JobPlacement Services for Ex-Offenders: An Evaluation of the Michigan Comprehensive Offender Manpower Program (COMP) Job-Placement Efforts, 11 J. HUM. RESOURCES 391
(1976) (giving a bleak assessment of the results of the Michigan COMP job-placement program that focused on pre-release educational and vocational services to convicts). But see
REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 16 (hailing as
successful the Department of Correctional Services vocational training program in optometry).
290. The studies conducted in New York showed that employers are generally unaware of financial incentives available to them and would prefer to have intermediary organizations assist them in applying for these incentives in a process that is “as easy and hasslefree as possible.” REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at
291. See Center for Employment Opportunities, Grants, (last visited Feb. 1, 2008) (enumerating numerous sources sponsoring
the Center).
292. To provide just one example, Grand Rapids organization Cascade Engineering
recently received funds from a $495,000 U.S. Department of Labor grant, which it will use
for a “series of ex-offender training sessions.” Press Release, Cascade Engineering, Cascade
Engineering Selected to Implement Ex-Offender Reintegration Program (Dec. 29, 2005), (last visited Feb. 1, 2008). This money
could find a better application if spent to promote the intermediary organization’s goals
described above.
293. One such program in Michigan is the Michigan Prisoner Re-Entry Initiative,
currently implemented at eight pilot sites in Michigan and designed, among other objectives,
Reaching a Compromise
Whether the funds come from non-governmental grants or from the state,
the idea of an intermediary organization is well worth the expenditure, as
demonstrated in those jurisdictions that have adopted this model.294
Despite the announced legislative policy towards reintegration of exoffenders295 and the self-laudatory estimates about the effects of implementing this policy,296 Michigan has a long way to go before it can adjust its calculus in treatment of ex-offenders from punitive exclusion to social reintegration. In today’s competitive labor market, the state must concentrate first
on affording ex-offenders a meaningful chance to obtain full-time employment. The indeterminate status of the law of negligent hiring, pervasiveness
of employment-related collateral consequences imposed on ex-offenders,
and the insufficiency of federal protections substantially impair exoffenders’ chances to find their way out of the vicious vortex. Under these
circumstances, a prompt action by the state to protect ex-offenders from
records-based discrimination and to incentivize employers to hire exoffenders becomes indispensable.
While the list of the desired measures to protect ex-offenders is extensive, the critical ones endorsed in this Comment provide convicted individuals with a chance to petition a court for timely relief from civil disabilities;
ban records-based discrimination; clearly delineate the scope of duty in the
negligent hiring cases; and supply transitional employment opportunities for
ex-convicts. This Comment also recommends remedies to assist employers
in hiring ex-offenders and avoiding unwarranted liability. These include
creating a wage subsidy program for ex-offenders’ employment; providing
employers with free access to criminal records at hiring; establishing an
to connect employers with ex-offenders upon their release from prison. See MICHIGAN
intermediary organization would thus fit comfortably within the general goals of the Initiative.
294. Favorable results of the intermediaries’ efforts to employ ex-offenders are
demonstrated by the Texas-based project RIO, whose participants were almost twice as likely to find employment and to avoid re-arrest as their non-RIO-participating counterparts.
Pager, supra note 12, at 510; see also Maria L. Buck, Getting Back to Work: Employment
Programs for Ex-Offenders (Field Report Series 2000), available at (summarizing successes of other intermediary
organizations in the country).
295. See discussion supra Section II.B and cases cited supra note 98.
(May 1, 2006), (praising the expansive innovative foundations of the Michigan Prisoner
ReEntry Initiative).
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[Vol. 2007:1051
intermediary organization dealing with ex-offenders; and granting a business-judgment-rule protection to those employers who have conducted
background checks or hired employees through the intermediary organization. This complex of measures is in sync with the holistic approach to exoffender rehabilitation prevalent in the modern literature and adopted or
espoused in the progressive U.S. jurisdictions. These measures reflect the
principles of proportionality and individualized justice lost in the years of
the tough-on-crime political discourse. Lastly, and most importantly, these
measures represent the necessary step in effecting a fundamental change in
our society’s attitudes towards those who have once made a mistake.297
297. In the end, the problem of ex-offenders’ reintegration can no longer be reduced
to the mere problem of recidivism. Rather, it is “best conceptualized as social integration”
demanding “a new partnership of public and private entities” for the sake of not just exoffenders themselves but everybody affected by them during “their transition from prison to
PRISONER REENTRY, supra note 203, at 47.